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EXHIBIT 10.16
INTERCOMPANY AGREEMENT
INTERCOMPANY AGREEMENT dated as of October 24, 2000 (this
"Agreement"), by and between GREYHOUND LINES, INC., a Delaware corporation (the
"Company") and XXXXXXX TRANSPORTATION, INC., a Delaware corporation ("LTI").
In consideration of the mutual covenants and agreements set forth herein and for
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01. DEFINITIONS. Wherever used in this Agreement, unless the
context otherwise requires, the following terms have the meanings indicated
(such meanings to be equally applicable to both the singular and the plural form
of the terms defined):
"Affiliate" means a Person who, directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under
common control with, the Company. The term "control" means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Bankruptcy Code" means 11 U.S.C. Section 101 et seq., as amended
from time to time, and any successor statute.
"Business Day" means a day when banks are open for business in
New York, New York.
"Closing Date" shall have the meaning provided therefor in the
Senior Credit Facility.
"Company" has the meaning provided therefor in the introductory
paragraph.
"Dollars" and the sign "$" means the lawful currency of the
United States of America.
"Foothill" means Foothill Capital Corporation, a California
corporation, in its capacity as administrative agent under the Senior
Credit Facility.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Insolvency Proceeding" has the meaning provided therefor in
Section 4.02.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest).
"Loan" means any amount from time to time owing by the Company to
LTI hereunder.
"LTI Obligations" means any Obligations owing to LTI hereunder.
"Material Adverse Effect" has the meaning provided therefor in
Section 3.01(a).
"Maturity Date" has the meaning provided therefor in Section
2.01(a).
"Obligations" means all present and future indebtedness of the
Company which may be, from time to time, directly or indirectly
incurred by the Company, including, but not limited to, any negotiable
instruments evidencing the same, and all guaranties, debts, demands,
monies, indebtedness, liabilities, and obligations owed or to become
owing, including interest, principal, costs, and other charges, and
all claims, rights, causes of action, judgments, decrees, remedies,
security interests, or other obligations of any kind whatsoever and
howsoever arising, whether voluntary, involuntary, absolute,
contingent, or by operation of law, other than obligations which are
general accounts or trade payables.
"Person" means any individual, corporation, company, limited
liability company, voluntary association, partnership, joint venture,
trust, unincorporated organization or government or any agency,
instrumentality or political subdivision thereof, or any other form of
entity.
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"Senior Credit Facility" shall mean that certain Loan and
Security Agreement dated as of even date herewith by and among the
Company, as borrower, the lenders from time to time party thereto (the
"Senior Lenders"), and Foothill.
"Senior Obligations" means any Obligations owing under the Senior
Credit Facility.
"Subsidiary" with respect to any Person, means (i) any
corporation of which the outstanding capital stock having at least a
majority of the votes entitled to be cast in the election of directors
under ordinary circumstances shall at the time be owned, directly or
indirectly, through one or more intermediaries, by such Person or (ii)
any other Person of which at least a majority of the voting interest
under ordinary circumstances is at the time, directly or indirectly,
through one or more intermediaries, owned by such Person.
SECTION 1.02. INTERPRETATION. In this Agreement, unless the
context otherwise requires:
(a) headings and underlinings are for convenience only and do not
affect the interpretation of this Agreement;
(b) words importing the singular include the plural and vice
versa, and the word "including" shall mean "including, without limitation"
unless the context otherwise requires;
(c) an expression importing a natural Person includes any
company, partnership, trust, joint venture, association, corporation or other
body corporate and any Governmental Authority or agency;
(d) a reference to a Section, party, Exhibit, Annex or Schedule
is a reference to that Section of, or that party, Exhibit, Annex or Schedule to,
this Agreement;
(e) a reference to a document includes an amendment or supplement
to, or replacement or novation of, that document but disregarding any amendment,
supplement, replacement or novation made in breach of this Agreement; and
(f) a reference to a party to any document includes that party's
successors and permitted assigns.
SECTION 1.03. BUSINESS DAY ADJUSTMENT. Where the day on or by
which a payment is due to be made is not a Business Day, that payment shall be
due on or by the next succeeding Business Day.
ARTICLE II
TERMS OF INTERCOMPANY ADVANCES
SECTION 2.01. TREATMENT OF INTERCOMPANY ADVANCES.
(a) Subject to the terms and conditions set forth herein, any
amounts owing to LTI from the Company from time to time following the Closing
Date (other than general accounts or trade payables) shall be deemed to be a
Loan, and shall be due and payable upon the later of (i) 91 days following
payment in full of all amounts due and owing under the Senior Credit Facility or
(ii) demand by LTI of payment therefor (the "Maturity Date").
(b) On the Closing Date, any general accounts or trade
payables owing to LTI by the Company in excess of $43 million shall be deemed to
be "Loans" hereunder, and shall no longer constitute trade payables.
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(c) Any Loans outstanding hereunder shall not be required to
be evidenced by a promissory note in favor of LTI, but shall be reflected on the
books of the Company as indebtedness to LTI.
SECTION 2.02. INTEREST. The Company shall pay interest on the
principal amount of Loans outstanding hereunder, in arrears on the Maturity Date
at the Applicable Federal Rate (as such term is defined in the Internal Revenue
Code of 1986, as amended and the regulations thereunder) per annum. Interest
shall be calculated on the basis of a 365 or 366 day year, as applicable, for
the number of days elapsed.
SECTION 2.03. PRINCIPAL PAYMENTS. The Company shall repay any
outstanding principal of the Loans to LTI on the Maturity Date. Subject to
Article IV hereof, the Company shall be entitled to pay any amounts outstanding
hereunder prior to the Maturity Date without penalty or premium.
SECTION 2.04. USE OF PROCEEDS. The Company shall use the
proceeds of the Loans hereunder for working capital and other general corporate
purposes of the Company and/or any of its Subsidiaries.
SECTION 2.05. RECEIPT OF PAYMENTS. The Company shall make
payments on the Loans not later than 3:00 P.M. (New York time) on the day when
due in Dollars in immediately available funds to LTI's depository bank in the
United States as designated by LTI from time to time for deposit in LTI's
depositary account. For purposes only of computing interest under this
Agreement, all payments shall be applied by LTI to the Loans on the day payment
is credited by LTI's depository bank to LTI's account in immediately available
funds.
SECTION 2.06. APPLICATION OF PAYMENTS. The Company irrevocably
waives the right to direct the application of any and all payments at any time
or times hereafter received by LTI from or on behalf of the Company pursuant to
the terms of this Agreement, and the Company irrevocably agrees that LTI shall
have the continuing exclusive right to apply any and all such payments against
the then due and payable Obligations of the Company and in repayment of the
Loans as it may deem advisable. In the absence of a specific determination by
LTI with respect thereto, the same shall be applied in the following order: (i)
then due and payable fees and expenses; (ii) then due and payable interest
payments on the Loans; and (iii) then due and payable principal payments on the
Loans.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
THE COMPANY. The Company represents and warrants to, and agrees with LTI that:
(a) The Company and each of its Subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their
respective jurisdictions of organization, are duly qualified to do business and
are in good standing in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged,
except where the failure to so qualify or have such power or authority would
not, singularly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects
of the Company and its Subsidiaries taken as a whole (a "Material Adverse
Effect").
(b) The Company has all requisite power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
Company has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the transactions contemplated
hereby, except for any consents, authorizations, filings and notices which have
been obtained or made and are in full force and effect.
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(c) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes valid and legally binding agreements of
the Company, enforceable against the Company in accordance with its terms,
except (i) to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and (ii) to the extent
that the enforceability of rights to indemnification and contribution thereunder
may be limited by federal or state securities laws or regulations or the public
policy underlying such laws or regulations.
(d) The execution, delivery and performance by the Company of
this Agreement and compliance by the Company with the terms hereof and the
consummation by the Company of the transactions contemplated hereby do not and
will not conflict with or result in a breach or violation of: (i) any of the
terms, conditions, or provisions of the certificate of incorporation or bylaws
of the Company; (ii) any of the terms, conditions, or provisions of any material
agreement to which the Company is a party; (iii) any state or federal law
applicable to it; or (iv) any judgment, writ, injunction, decree, order, or
ruling of any court or governmental authority binding on the Company.
No injunction, restraining order or order of any nature by any
federal or state court of competent jurisdiction has been issued with respect to
the Company or any of its Subsidiaries which would prevent or suspend the
execution and delivery of this Agreement; no action, suit or proceeding is
pending against or, to the best knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries before any court or arbitrator
or any governmental agency, body or official, domestic or foreign, which could
reasonably be expected to interfere with or adversely affect the execution,
delivery and performance of this Agreement by the Company or in any manner draw
into question the validity or enforceability of this Agreement or any action
taken or to be taken pursuant hereto.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF LTI. LTI makes
the following representations and warranties to the Company, each of which is
true and correct as of the date hereof and shall be true and correct as of the
Closing Date. LTI hereby represents and warrants to, and agrees with, the
Company (and acknowledges that the Company will rely thereon), as follows:
LTI is validly existing and in good standing under the laws of
its jurisdiction of organization, is duly qualified to do business and is in
good standing in each jurisdiction in which their respective ownership or lease
of property or the conduct of its businesses requires such qualification, and
has all power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged, except where the failure to so
qualify or have such power or authority would not, singularly or in the
aggregate, have a Material Adverse Effect.
(a) LTI has all requisite power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. LTI has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the transactions contemplated hereby, except for any
consents, authorizations, filings and notices which have been obtained or made
and are in full force and effect.
This Agreement has been duly authorized, executed and
delivered by LTI and constitutes valid and legally binding agreements of LTI,
enforceable against LTI in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law).
The execution, delivery and performance by LTI of this
Agreement and compliance by LTI with the terms hereof and the consummation by
LTI of the transactions contemplated hereby do not and will not conflict with or
result in a breach or violation of: (i) any of the terms, conditions, or
provisions of the certificate of
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incorporation or bylaws of LTI; (ii) any of the terms, conditions, or provisions
of any material agreement to which LTI is a party; (iii) any state or federal
law applicable to it; or (iv) any judgment, writ, injunction, decree, order, or
ruling of any court or governmental authority binding on LTI.
No injunction, restraining order or order of any nature by any
federal or state court of competent jurisdiction has been issued with respect to
LTI or any of its Subsidiaries which would prevent or suspend the execution and
delivery of this Agreement; no action, suit or proceeding is pending against or,
to the best knowledge of LTI, threatened against or affecting LTI or any of its
Subsidiaries before any court or arbitrator or any governmental agency, body or
official, domestic or foreign, which could reasonably be expected to interfere
with or adversely affect the execution, delivery and performance of this
Agreement by LTI or in any manner draw into question the validity or
enforceability of this Agreement or any action taken or to be taken pursuant
hereto.
The foregoing representations, warranties and agreements shall
survive the execution and delivery of this Agreement.
ARTICLE IV
SUBORDINATION
SECTION 4.01. SUBORDINATION OF LTI OBLIGATIONS TO SENIOR
OBLIGATIONS.
(a) Any and all LTI Obligations, including, but not limited
to, the obligations of the Company owing to LTI hereunder are hereby
subordinated to any and all Senior Obligations or any other agreement or
agreements between Foothill and the Company, now or hereafter existing, whether
matured or not, including any interest which, but for the application of the
provisions of the Bankruptcy Code, would have accrued on such amounts. Except as
may be expressly provided in this Agreement, no payment shall be made by the
Company on the LTI Obligations until: (a) all of the Senior Obligations have
been indefeasibly paid by the Company in full, in cash; and (b) all obligations
of the lenders under the Senior Credit Facility to make loans or advances to, or
to issue or guarantee letters of credit for the account of, the Company shall
have terminated.
SECTION 4.02. INSOLVENCY. In the event of any assignment by
the Company for the benefit of the Borrower's creditors, of any voluntary or
involuntary bankruptcy proceedings instituted by or against the Company, of the
appointment of any receiver for the Company or the Company's business or assets,
or of any dissolution or other winding up of the affairs of the Company or of
the Company's business (collectively, "Insolvency Proceedings"), and in all such
cases respectively, the officers of the Company and any assignee, trustee in
bankruptcy, receiver, and other person or persons in charge, are hereby directed
to pay to Foothill the full amount of the Senior Obligations (including all
interest accruing, and all interest which, but for the application of the
Bankruptcy Code, would have accrued, after the commencement of any such
Insolvency Proceeding), in cash, before making any payments or distributions of
any kind to LTI.
SECTION 4.03. LIMITATIONS ON LTI'S ACTIONS. Except as may be
expressly provided in this Agreement, so long as any of the Senior Obligations
remains unpaid, in whole or in part, and so long as the lenders under the Senior
Credit Facility are committed or otherwise obligated to make loans and advances
to, or guarantee letters of credit for the account of, the Company pursuant to
the Senior Credit Facility, LTI agrees not to: (i) accelerate or collect or
receive payment upon, by setoff or in any other manner, any portion of the LTI
Obligations; (ii) sell, assign, exchange, redeem, transfer, pledge, or give a
security interest in the LTI Obligations; (iii) enforce, collect, realize upon,
or apply any collateral security now or hereafter existing for the LTI
Obligations; (iv) commence, prosecute, or participate in any administrative,
legal, or equitable action that might adversely affect the Company or Foothill
or either of their interests; (v) join in any Insolvency Proceeding; (vi) take
any lien on or security interest in any of the Company's real or personal
property; (vii) incur any obligation to, or receive any loans,
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advances, or gifts from the Company; and (viii) modify any of the terms and
conditions of the LTI Obligations.
SECTION 4.04. MODIFICATION OF SENIOR CREDIT FACILITY. LTI
agrees that Foothill and the other lenders under the Senior Credit Facility
shall have absolute power and discretion, without notice to LTI, to deal in any
manner with the Senior Obligations, including, but not by way of limitation, the
power and discretion to do any of the following: (a) any demand for payment of
any Senior Obligation may be rescinded in whole or in part, and any Senior
Obligation may be continued, and the Senior Obligations or the liability of the
Company or any other party upon or for any part thereof, or any collateral
security or guaranty therefor, or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, modified,
accelerated, compromised, waived, surrendered, or released; and (b) the Senior
Credit Facility and any document or instrument evidencing or governing the terms
of any other Senior Obligations or any collateral security documents or
guaranties or documents in connection with the Senior Credit Facility or the
Senior Obligations may be amended, modified, supplemented, or terminated, in
whole or in part, as Foothill may deem advisable from time to time, and any
collateral security at any time held by Foothill for the payment of any of
Senior Obligations may be sold, exchanged, waived, surrendered, or released. LTI
will remain bound under this Agreement, and the subordination provided for
herein shall not be impaired, abridged, released, or otherwise affected
notwithstanding any such renewal, extension, modification, acceleration,
compromise, amendment, supplement, termination, sale, exchange, waiver,
surrender, or release. The Senior Obligations shall conclusively be deemed to
have been created, contracted, or incurred in reliance upon this Agreement, and
all dealings between the Company and Foothill and the other lenders party to the
Senior Lenders shall be deemed to have been consummated in reliance upon this
Agreement.
SECTION 4.05. LTI'S WAIVERS. LTI waives: (a) any and all
notice of the creation, modification, renewal, extension, or accrual of any of
the Senior Obligations and notice of or proof of reliance by Foothill or the
Senior Lenders upon this Agreement; (b) and agrees not to assert against
Foothill or the Senior Lenders any rights which a guarantor or surety could
exercise; but nothing in this Agreement shall constitute LTI a guarantor or
surety; (c) the right, if any, to require Foothill or the Senior Lenders to
marshal or otherwise require Foothill or the Senior Lenders to proceed to
dispose of or foreclose upon collateral in any manner or order; and (d) any
right of subrogation, contribution, reimbursement, or indemnity which it may
have against the Company arising directly or indirectly out of this Agreement.
SECTION 4.06. CONTINUING NATURE. Notwithstanding any action or
inaction by Foothill or the Sr. Lenders with respect to the Senior Obligations
or with respect to any collateral therefor or any guaranties thereof, this
Agreement, the obligations of LTI owing to Foothill and the Sr. Lenders, the
rights and privileges of Foothill and the Sr. Lenders and hereunder, shall
continue until indefeasible payment in full, in cash, of all of the Senior
Obligations and termination of any obligation of Foothill or the lenders under
the Senior Credit Facility to make loans or advances to, or
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guarantee letters of credit for the account of, the Company. All rights, power,
and remedies hereunder shall apply to all past, present, and future Senior
Obligations, including those arising out of successive transactions which may
continue, renew, increase, decrease, or from time to time create new Senior
Obligations. The subordinations, agreements, and priorities set forth herein
shall remain in full force and effect, regardless of whether any party hereto in
the future seeks to rescind, amend, terminate, or reform, by litigation or
otherwise, its respective agreements with the Company.
SECTION 4.07. NO LTI LIENS. LTI further agrees that in case
LTI shall, in contravention of the terms of this Agreement, take or receive any
security interest in, or lien by way of attachment, execution, or otherwise, on
any of the real or personal property of the Company, or should take or join in
any other measure or advantage contrary to this Agreement, at any time prior to
the payment in full, in cash, of all of the Senior Obligations, Foothill shall
be entitled to have the same vacated, dissolved, and set aside by such
proceedings at law or otherwise as Foothill may deem proper, and this Agreement
shall constitute full and sufficient grounds therefor and shall entitle Foothill
to become a party to any proceedings at law or otherwise initiated by Foothill
or by any other party, in or by which Foothill may deem it proper to protect
Foothill's interest hereunder.
SECTION 4.08. PAYMENTS IN TRUST. Except as otherwise expressly
agreed to herein, if LTI shall receive any payments, collateral security, or
other rights in any property of the Company in violation of this Agreement, such
payment or property shall be received by LTI in trust for Foothill and shall
immediately be delivered and transferred to Foothill.
SECTION 4.09. NO PRIOR SUBORDINATIONS. No currently effective
subordinations of the LTI Obligations have previously been executed by LTI for
the benefit of anyone else, and any such subordinations hereafter executed will
be, and shall be expressed to be, subject and subordinate to the terms of this
Agreement.
SECTION 4.10. FINANCIAL CONDITION OF THE COMPANY. LTI
represents and warrants to Foothill that LTI is currently informed of the
financial condition of the Company and of all other circumstances which a
diligent inquiry would reveal and which bear upon the risk of nonpayment of the
Senior Obligations. LTI further represents and warrants to Foothill that LTI has
read and understands the terms and conditions of the Senior Credit Facility. LTI
hereby covenants that LTI will continue to keep informed of the Company's
financial condition, the financial condition of other guarantors of the Senior
Obligations, if any, and of all other circumstances which bear upon the risk of
nonpayment or nonperformance of the Senior Obligations.
SECTION 4.11. ADDITIONAL DOCUMENTS. LTI agrees to execute and
deliver, upon the request of Foothill, such documents and instruments
(appropriate for filing or recording, if requested) as may be necessary or
appropriate to fully implement or to fully evidence the understanding and
agreements contained in this Agreement.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01. NOTICES. Any notice, request or other
communication to be given or made under this Agreement shall be in writing.
Subject to Section 5.03, the notice, request or other communication may be
delivered in person, by a nationally recognized overnight courier service
requiring acknowledgement of receipt and delivery, by United States registered
mail, postage prepaid and return receipt requested, or by facsimile, to the
party's address specified below or at such other address as such party notifies
to the other party from time to time and will be effective upon receipt.
If to the Company:
General Counsel
Greyhound Lines, Inc.
00000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to LTI:
Xxxxx Xxxxxxxxx
Xxxxxxx Transportation, Inc.
000 Xxx Xxxxx Xxxxx Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
SECTION 5.02. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Texas
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Texas or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the State of Texas.
SECTION 5.03. BENEFIT OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns. LTI and the Company agree
that Foothill and the Sr. Lenders are intended to be third party beneficiaries
of this agreement.
SECTION 5.04. ASSIGNMENTS. The Company may not assign or
delegate any of its interests or obligations under this Agreement. LTI may
assign its rights under this Agreement to any of its Affiliates or Subsidiaries,
so long as such assignee agrees to be bound by Article IV hereof.
SECTION 5.05. AMENDMENT. Neither this Agreement nor any terms
hereof may be changed, waived or discharged or terminated unless such change,
waiver, discharge or termination is in writing signed by the Company and LTI and
acknowledged and agreed to by Foothill.
SECTION 5.06. COUNTERPARTS; INTEGRATION. This Agreement may be
executed in several counterparts, each of which is an original, but all of which
together constitute one and the same agreement. This Agreement constitutes the
entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, and as written,
relating to the subject matter hereof. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Agreement.
SECTION 5.07. REMEDIES AND WAIVERS. No failure or delay by any
party hereto in exercising any power, remedy, discretion, authority or other
rights under this Agreement shall waive or impair that or any other right of
such party. No single or partial exercise of such a right shall preclude its
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additional or future exercise. No such waiver shall waive any other right under
this Agreement. All waivers or consents given under this Agreement shall be in
writing.
SECTION 5.08. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof, and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 5.09. WAIVER OF JURY TRIAL. Each party hereto hereby
irrevocably waives to the fullest extent permitted by applicable law, any right
it may have to a trial by jury in any legal action or proceeding directly or
indirectly arising out of or relating to this agreement or the transactions
contemplated hereby (whether based on contract, tort or any other theory). Each
party hereto (a) certifies that no representative, agent or attorney of the
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other party hereto have been induced
to enter into this agreement by, among other things, the mutual waiver and
certifications in this section.
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IN WITNESS WHEREOF, the parties have caused this Intercompany
Agreement to be signed in their respective names as of the date above first
written.
GREYHOUND LINES, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
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Title: SVP-CFO
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XXXXXXX TRANSPORTATION, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
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Title: Snr. Vice-Pres.
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Acknowledged and agreed to as of the date first set forth above:
FOOTHILL CAPITAL CORPORATION, as Agent
By: /s/ XXXXXXXX XXXXXXXXXX
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Name: Xxxxxxxx XxXxxxxxxx
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Title: VP
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