EXHIBIT 10.19
AMENDMENT NO. 2 AND WAIVER
This Amendment No. 2 and Waiver dated as of February 19, 1997 (this
"Agreement"), is among Coach USA, Inc., a Delaware corporation (the
"Borrower"), the undersigned financial institutions that are parties to the
Credit Agreement referred to below (the "Banks"), and NationsBank of Texas,
N.A., as agent (the "Agent") for the financial institutions that are parties
to the Credit Agreement.
INTRODUCTION
Reference is made to the Credit Agreement dated as of August 14, 1996 (as
amended, the "Credit Agreement"), among the Borrower, the Banks, and the
Agent, the defined terms of which are used herein unless otherwise defined
herein. The Borrower, the Banks, and the Agent have agreed to increase the
amount of the Revolving Loan Commitments under the Credit Agreement to
$181,000,000 and make other amendments and waivers to the Credit Agreement as
set forth herein in connection therewith.
THEREFORE, in connection with the foregoing and for other good and valuable
consideration, the Borrower, the Banks, and the Agent hereby agree as follows:
Section 1. AMENDMENT.
a. Each Bank party to the Credit Agreement prior to the execution
of this Agreement is retaining its existing Revolving Loan Commitments
and, to the extent necessary, assuming additional Revolving Loan
Commitments under the terms of the Credit Agreement such that upon the
effectiveness of this Agreement the Revolving Loan Commitments of such
Bank shall be those set forth for such Bank on the signature pages of
this Agreement. The effective date for this increase shall be the date
of this Agreement, and following the effectiveness of this Agreement and
as of such date, (a) the Agent shall record the new Revolving Loan
Commitments in the Register and (b) the Agent shall reallocate all
outstanding Revolving Loan Advances and all participation interests in
Letters of Credit so that the Banks hold such Revolving Loan Advances
and participation interests in Letters of Credit ratably in accordance
with their Revolving Loan Commitments.
b. A new definition of "Amendment No. 2 and Waiver" is added to
Section 1.1 of the Credit Agreement in the appropriate alphabetical
order and the definition of "Revolving Loan Commitment" in Section 1.1
of the Credit Agreement is amended by replacing such definition in its
entirety, both as set forth below:
"AMENDMENT NO. 2 AND WAIVER" means the Amendment No. 2 and Waiver
dated as of February 19, 1997, among the Borrower, the Agent, and the Banks
amending and waiving the terms of this Agreement.
"REVOLVING LOAN COMMITMENT" means, for any Bank, the amount set
forth below such Bank's name on the signature pages of the Amendment No.2
and Waiver as its Revolving Loan Commitment, or if such Bank has entered
into any Assignment and Acceptance since the date of the Amendment No. 2
and Waiver, as set forth for such Bank as its Revolving Loan Commitment in
the Register maintained by the Agent pursuant to Section 8.5(c), in each
case as such amount may be terminated pursuant to Section 6.2.
c. The definitions of "Guaranty," "Guarantors", and "Security
Agreement" in Section 1.1 of the Credit Agreement are amended by
deleting from each such definition each reference to "August 14,
1996," and replacing each such reference in its entirety with a
reference to "February 19, 1997."
d. The definitions of "Permitted Debt" and "Permitted Liens"
in Section 1.1 of the Credit Agreement are amended by replacing such
definitions in their entirety with the following:
"PERMITTED DEBT" means all of the following Debt:
(a) Debt in the form of the Credit Obligations;
(b) Debt (i) existing on February 19, 1997, and listed in Schedule
II and (ii) Debt incurred after such date provided that the aggregate
outstanding amount of Debt under clauses (i) and (ii) hereof does not
exceed $40,000,000;
(c) Debt in the form of intercompany Debt among the Borrower and
its Subsidiaries provided that in each case the Debt is subordinated
upon terms satisfactory to the Agent to the obligations of the Borrower
and its Subsidiaries with respect to the Credit Obligations;
(d) Debt in the form of Subordinated Debt;
(e) Debt in the form of obligations to insurance providers for the
Borrower and its Subsidiaries for financing insurance premiums in an
aggregate outstanding amount not to exceed $1,000,000; and
(f) Debt in the form of indebtedness for borrowed money and
letters of credit owed by any Subsidiary of the Borrower prior to the
acquisition of such Subsidiary by the Borrower in an Acquisition
transaction, or owed by any Person that is the subject of any
Acquisition assumed by the Borrower or any Subsidiary of the Borrower in
connection with such Acquisition, provided that (i) with respect to any
such indebtedness for borrowed money, arrangements satisfactory to the
Agent for the repayment of such indebtedness within 60 days following
the closing of the Acquisition are made prior to the closing of the
Acquisition and such arrangements are executed, (ii) with respect to
such Debt in the form of letters of credit, arrangements satisfactory to
the Agent for the repayment of such indebtedness within 60 days
following the closing of the Acquisition are made prior to the closing
of the Acquisition and such arrangements are executed, and (iii) with
respect to all such Debt, the Borrower could obtain Advances or Letters
of Credit, respectively, under this Agreement in the aggregate
outstanding amount of such corresponding Debt.
"PERMITTED LIENS" means all of the following Liens:
(a) Liens securing the Credit Obligations;
(b) Liens securing purchase money debt or Capital Leases permitted
under clause (b) of the definition of Permitted Debt provided that no
such Lien is spread to cover any property not purchased or leased in
connection with the incurrence of such Debt;
(c) Liens on assets acquired in Acquisitions securing Debt
described under clause (f) of the definition of Permitted Debt provided
that all such Liens and the notations, filings, and recordings
reflecting such Liens are released within 90 days following the closing
of the Acquisition; and
(d) Liens arising in the ordinary course of business which are not
incurred in connection with the borrowing of money or the obtaining of
advances or credit and which do not materially detract from the value of
any Restricted Entity's assets or materially interfere with any
Restricted Entity's business, including such (i) Liens for taxes,
assessments, or other governmental charges or levies; (ii) Liens in
connection with worker's compensation, unemployment insurance, or other
social security, old age pension, or public liability obligations; (iii)
Liens in the form of legal or equitable encumbrances deemed to exist by
reason of negative pledge covenants and other covenants or undertakings
of like nature; (iv) Liens in the form of vendors', carriers',
warehousemen's, repairmen's, mechanics', workmen's, materialmen's,
construction, or other like Liens arising by operation of law in the
ordinary course of business or incident to the construction or
improvement of any property; (v) Liens in the form of zoning
restrictions, easements, licenses, and other restrictions on the use of
real property or minor irregularities in title thereto which do not
materially impair the use of such property in the operation of the
business of the applicable Restricted Entity or the value of such
property; and (vi) Liens in the form of precautionary financing
statements that have been filed to reflect operating leases of tires (to
the extent such filings could be considered Liens hereunder).
e. Schedule II to the Credit Agreement is replaced with Schedule II
to this Agreement.
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f. Section 5.14 of the Credit Agreement is amended by replacing such
Section in its entirety with the following:
5.14 LINES OF BUSINESS The Borrower shall not permit the Restricted
Entities to change the character of their business as conducted on the date of
this Agreement, or engage in any type of business not reasonably related to such
business as presently and normally conducted; provided that nothing contained in
the foregoing shall prohibit any Restricted Entity from (a) expanding its
business into any of the other types of businesses of any of the other
Restricted Entities as of the date of this Agreement or (b) entering into and
expanding into business in the taxicab industry.
g. Section 5.19 of the Credit Agreement is amended by replacing such
Section in its entirety with the following:
5.19 SUBSIDIARIES. (a) Upon the formation or acquisition of any new
Subsidiary, or when required under paragraph (b) below with respect to any
Subsidiary, the Borrower shall and shall cause such Subsidiary to promptly
execute and deliver to the Agent such guaranties, security agreements, amendment
agreements, and other documents and agreements as the Agent requests so that
such Subsidiary guarantees and secures the Credit Obligations on the same terms
as the existing Subsidiaries of the Borrower (including the execution and
delivery of a Joinder Agreement in substantially the form of Exhibit G for the
purpose of joining such Subsidiary as a party to the Guaranty and the Security
Agreement or the execution of such new guaranties and security agreements as the
Agent determines are necessary to have the same effect in different
jurisdictions). In connection therewith, the Borrower shall provide corporate
documentation and opinion letters reasonably satisfactory to the Agent
reflecting the corporate status of such new Subsidiary of the Borrower and the
enforceability of such agreements.
(b) The Borrower may exempt from the requirements of paragraph (a) above
any Subsidiaries of the Borrower that are business entities formed and existing
under the laws of Canada provided that such exempt Subsidiaries of the Borrower
(the "Exempt Canadian Subsidiaries") meet the following requirements: (i) the
Exempt Canadian Subsidiaries own and operate only assets domiciled in Canada,
(ii) the aggregate outstanding amount of cash investments and loans made by the
Borrower and its Subsidiaries that are not Exempt Canadian Subsidiaries to the
Exempt Canadian Subsidiaries does not exceed $3,500,000, (iii) the consolidated
assets of the Exempt Canadian Subsidiaries do not exceed 10% of the consolidated
assets of the Borrower, and (iv) the consolidated revenues of the Exempt
Canadian Subsidiaries for any fiscal quarter of the Borrower do not exceed 10%
of the consolidated revenues of the Borrower for such fiscal quarter. At any
time any of the foregoing requirements set forth in clauses (i), (ii), (iii), or
(iv) above are no longer satisfied, then the Borrower shall cause some or all of
the Exempt Canadian Subsidiaries to promptly comply with the requirements of
paragraph (a) to the extent necessary to maintain the requirements for exemption
for the remaining Exempt Canadian Subsidiaries.
Section 2. WAIVER. The Banks hereby waive any Default or Event of Default
existing prior to the effectiveness of this Agreement for
failure to comply with Section 5.6 of the Credit Agreement that
was caused by the existence of an excess of Debt described in
clause (b) of the definition of Permitted Debt prior to the
amendment of such definition under this Agreement. This waiver
does not extend to any violation of Section 5.6 of the Credit
Agreement that exists under the terms of Section 5.6 after the
effectiveness of this Agreement. This waiver is limited to the
extent described herein and shall not be construed to be a
waiver of any other terms of the Credit Agreement or of the
Credit Documents.
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Section 3. EFFECTIVENESS. The effectiveness of the amendments in Section
1 of this Agreement are subject to the satisfaction of the
following conditions precedent:
a. PAYMENT OF INCREASE FEES. The Borrower shall have paid to the
Agent for the benefit of each Bank a commitment increase fee for such Bank
equal to the product of the increase in the Commitment of such Bank in
connection with this Agreement multiplied by the commitment increase fee
percentage set forth below for the applicable level of total Commitment of
such Bank:
TOTAL COMMITMENT LEVEL COMMITMENT INCREASE FEE
---------------------------------------- -----------------------
$25,000,000 0.30%
,$25,000,000 but $20,000,000 0.20%
,$20,000,000 but $15,000,000 0.15%
,$15,000,000 0.10%
b. CLOSING DOCUMENTS. Borrower shall have delivered or shall have caused to be
delivered the documents and other items listed below, each in form and with
substance satisfactory to the Agent and where applicable executed by the
appropriate parties thereto:
i. this Agreement;
ii. Notes for each of the Banks in the amounts of their new Revolving Loan
Commitments;
iii. a supplement to the Agents Fee Letter;
iv. a restated Guaranty covering all of the Subsidiaries of the Borrower in
existence at the time of this Agreement;
v. a restated Security Agreement covering all of the Subsidiaries of the
Borrower in existence at the time of this Agreement with additional
provisions regarding the license interests and leases of Yellow Cab
Company and its Subsidiaries;
vi. an updated Vehicle Listing for each Credit Party including net book value
for each Vehicle, together with original Certificates of Title for each
vehicle owned without lien to the extent not earlier provided;
vii. UCC-1 Financing Statements required for the restated Security Agreement
for perfecting the Agent's security interests to the extent required
thereunder;
viii. UCC lien searches on the name of each Credit Party in each jurisdiction
where filing is necessary to perfect security interests against such
Credit Party, together with any other Lien Searches requested by the
Agent;
ix. Property and Liability Insurance policies and certificates showing
compliance with the insurance requirements under the Credit Documents,
including having the Agent named as an additional named insured and loss
payee as required thereunder, together with copies of the underlying
insurance policies;
x. Opinion of Liddell Xxxx regarding the existence and good standing of the
Borrower, the authorization of the Credit Documents by the Borrower, the
enforceability of the Credit Documents, the absence of conflicting
agreements, the absence of litigation, and certain other matters as
described therein;
xi. Opinion of General Counsel for the Credit Parties regarding the existence
and good standing of the Subsidiaries, the authorization of the Credit
Documents by the Subsidiaries, and certain other matters as described
therein;
xii. Certificate of Assistant Secretary of the Borrower certifying the
Borrower's existence and good standing in its state of incorporation,
articles, bylaws and resolutions, and the Borrower's qualification and
good standing in all states in which it conducts material business
transactions; and
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xiii. Certificate of Assistant Secretary of each of the Subsidiaries of the
Borrower certifying each such corporation's existence and good standing
in its state of incorporation, articles, bylaws and resolutions, and each
corporation's qualification and good standing in all states in which it
conducts material business transactions;
c. NO DEFAULT. No Default shall have occurred and be continuing; and
d. REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in each Credit Document shall be true and correct in
all material respects as of the date hereof.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants that (a) the execution, delivery, and performance of
this Agreement are within the corporate power and authority of
the Borrower and have been duly authorized by appropriate
proceedings, (b) this Agreement constitutes legal, valid, and
binding obligations of the Borrower enforceable in accordance
with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws
affecting the rights of creditors generally and general
principles of equity, and (c) upon the effectiveness of this
Agreement and the amendment of the Credit Agreement as provided
for herein, no Event of Default shall exist under the Credit
Documents and there shall have occurred no event which with
notice or lapse of time would become an Event of Default under
the Credit Documents, as amended.
Section 5. EFFECT ON CREDIT DOCUMENTS. As amended herein, the Credit
Documents remain in full force and effect. Nothing herein shall
act as a waiver of any of the Agent's or the Banks' rights
under the Credit Documents as amended, including the waiver of
any default or event of default, however denominated. The
Borrower must continue to comply with the terms of the Credit
Documents, as amended. This Agreement is a Credit Document for
the purposes of the provisions of the other Credit Documents.
Without limiting the foregoing, any breach of representations,
warranties, and covenants under this Agreement may be a default
or event of default under other Credit Documents.
Section 6. MISCELLANEOUS. The miscellaneous provisions of the Credit
Agreement apply to this Agreement. This Agreement shall be
governed by and construed and enforced in accordance with the
laws of the State of Texas. This Agreement may be signed in any
number of counterparts, each of which shall be an original.
[the remainder of this page is intentionally blank]
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THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
EXECUTED as of the date first above written.
BORROWER:
COACH USA, INC.
By: _____/s/_ XXXXXXX X. TURNER______
Xxxxxxx X. Xxxxxx
Treasurer
AGENT:
NATIONSBANK OF TEXAS, N.A., as Agent
By: _____/s/_ XXXXX X. RECER_________
Xxxxx X. Xxxxx
Vice President
BANKS:
NATIONSBANK OF TEXAS, N.A.
By: _____/s/_ XXXXX X. RECER_________
Xxxxx X. Xxxxx
Vice President
Revolving Loan
Commitment: $40,000,000
BANK ONE, TEXAS, N.A.
By: _____/s/__H. XXXX XXXXX, XX.______
Name: H. Xxxx Xxxxx, Xx.
Title: Vice President
Revolving Loan
Commitment: $30,000,000
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: _____/s/__JANE W. WORKMAN_________
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Revolving Loan
Commitment: $30,000,000
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XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: _____/s/__THEODORE R. LANE________
Name: Xxxxxxxx X. Xxxx
Title: Area Vice President
Revolving Loan
Commitment: $22,000,000
FLEET BANK, N.A.
By: _____/s/__ERIC H. WASER__________
Name: Xxxx X. Xxxxx
Title: Senior Vice President
Revolving Loan
Commitment: $20,000,000
SUMMIT BANK
By: _____/s/__STEVE DELUISE___________
Name: Xxxxx Xxxxxxx
Title: Vice President
Revolving Loan
Commitment: $20,000,000
THE SUMITOMO BANK, LIMITED
By: _____/s/__JOHN J. O'NEILL_________
Name: Xxxx X. X'Xxxxx
Title: Vice President and Manager
By: _____/s/__BRUCE PORTILLO__________
Name: Xxxxx Xxxxxxxx
Title: Vice President
Revolving Loan Commitment: $9,000,000
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BANQUE PARIBAS
By: _____/s/__SCOTT CLINGAN___________
Name: Xxxxx Xxxxxxx
Title: Vice President
By: _____/s/__LARRY ROBINSON__________
Name: Xxxxx Xxxxxxxx
Title: Vice President
Revolving Loan
Commitment: $10,000,000
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