Exhibit 10.20
AMENDMENT NUMBER THREE TO LOAN AND SECURITY AGREEMENT
This Amendment Number Three to Loan and Security Agreement
("Amendment") is entered into as of July __, 2002, by and between Greyhound
Lines, Inc., a Delaware corporation ("Borrower"), on the one hand, and the
various financial institutions that are or may from time to time become parties
to the Agreement referred to below (collectively, the "Lenders" and each
individually a "Lender"), and Foothill Capital Corporation, a California
corporation, as agent for the Lenders ("Agent"), on the other hand, in light of
the following:
A. Borrower, Lenders, and Agent have previously entered into that
certain Loan and Security Agreement, dated as of October 24, 2000 (as amended or
modified, from time to time, the "Agreement").
B. Borrower, Required Lenders, and Agent desire to amend the Agreement
as provided for and on the conditions herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby amend
and supplement the Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
(a) The definition of "Consolidated Cash Flow" in Section 1.1 of the
Agreement is hereby deleted in its entirety and replaced with the following:
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period
plus, to the extent deducted or excluded in calculating Consolidated
Net Income for such period, (a) an amount equal to any extraordinary
loss plus any net loss realized in connection with an asset sale, (b)
provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries, (c) Consolidated Interest Expense and (d)
depreciation and amortization (including amortization of goodwill and
other intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) of such Person and its Restricted
Subsidiaries, in each case, on a consolidated basis and determined in
accordance with GAAP.
(b) The definition of "Consolidated Net Worth" in Section 1.1 of
the Agreement is hereby deleted in its entirety and replaced with the following:
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"Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of (a) the consolidated equity of the common
stockholders of such Person and its consolidated Restricted
Subsidiaries as of such date; plus (b) the respective amounts reported
on such Person's balance sheet as of such date with respect to any
series of preferred stock (other than Disqualified Stock) that by its
terms is not entitled to the payment of dividends unless such dividends
may be declared and paid only out of net earnings in respect of the
year of such declaration and payment, but only to the extent of any
cash received by such Person upon issuance of such preferred stock;
plus (c) the amount (but in no event more than $30,000,000) by which
the consolidated equity described in clause (a) above would be reduced
in the event the unfunded accumulated pension obligation of Borrower
under the Plans is increased as a result of a Requirement of Law; plus
(d) in the case of Borrower, the amount of Indebtedness evidenced by,
and subordinated to the Obligations by, the Intercompany Agreement;
plus (e) the amount (but in no event more than $43,087,000) by which
the consolidated equity described in clause (a) above has been reduced
as a result of any impairment adjustment that results from Borrower's
application of Statement of Financial Accounting Standards No. 142."
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Agent and
the Lenders that all of Borrower's representations and warranties set forth in
the Agreement are true, complete and accurate in all material respects as of the
date hereof (except to the extent that such representations and warranties
relate solely to an earlier event).
4. NO DEFAULTS. Borrower hereby affirms to Agent and the Lenders that
no Event of Default has occurred and is continuing as of the date hereof.
5. CONDITION PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon the receipt by Agent of a copy of this Amendment
executed by Borrower and Required Lenders.
6. COSTS AND EXPENSES. Borrower shall pay to Agent all of Agent's
reasonable out-of-pocket costs and expenses (including, without limitation, the
fees and expenses of its counsel, which counsel may include any local counsel
deemed necessary, search fees, filing and recording fees, documentation fees,
title insurance endorsement, and other fees) arising in connection with the
preparation, execution, and delivery of this Amendment and all related
documents.
7. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended and supplemented hereby, shall remain in full force and
effect.
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8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
FOOTHILL CAPITAL CORPORATION,
as Agent and as a Lender
By:
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Name:
--------------------------------
Title:
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CONGRESS FINANCIAL CORPORATION,
as a Lender
By:
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Name:
--------------------------------
Title:
-------------------------------
FLEET CAPITAL CORPORATION,
as a Lender
By:
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Name:
--------------------------------
Title:
-------------------------------
TRANSAMERICA BUSINESS CAPITAL CORPORATION,
as a Lender
By:
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Name:
--------------------------------
Title:
-------------------------------
GREYHOUND LINES, INC.
By:
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Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
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Each of the undersigned has executed a Continuing Guaranty in favor of
the Lender Group (as defined in each Continuing Guaranty) respecting the
obligations of Greyhound Lines, Inc., a Delaware corporation ("Borrower") owing
to the Lender Group. Each of the undersigned acknowledges the terms of the above
Amendment and reaffirms and agrees that its Continuing Guaranty remains in full
force and effect; nothing in such Continuing Guaranty obligates the Lender Group
to notify the undersigned of any changes in the financial accommodations made
available to Borrower or to seek reaffirmations of the Continuing Guaranty; and
no requirement to so notify the undersigned or to seek reaffirmations in the
future shall be implied by the execution of this reaffirmation.
ATLANTIC GREYHOUND LINES OF VIRGINIA, INC.,
a Virginia corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board and President
and Chief Executive Officer
SISTEMA INTERNACIONAL DE TRANSPORTE DE
AUTOBUSES, INC., a Delaware corporation
By:
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Chief
Financial Officer
GLI HOLDING COMPANY,
a Delaware corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
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TEXAS, NEW MEXICO & OKLAHOMA COACHES, INC.,
a Delaware corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
VERMONT TRANSIT CO., INC.,
a Vermont corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
T.N.M. & O. TOURS, INC.,
a Texas corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
ROCKFORD COACH LINES, L.L.C.,
a Delaware limited liability company
By:
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Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
ASI ASSOCIATES, INC.,
a Hawaii corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: President
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CAROLINA COACH COMPANY,
a Virginia corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
SEASHORE TRANSPORTATION COMPANY,
a North Carolina corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
LSX DELIVERY, L.L.C.,
a Delaware limited liability company
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board
VALLEY GARAGE COMPANY,
a Texas corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
VALLEY TRANSIT CO., INC.,
a Texas corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
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ON TIME DELIVERY SERVICE, INC.,
a Minnesota corporation
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
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