EXHIBIT 10.4
XXXXXXX INTERNATIONAL, INC.
$825,000,000 CREDIT AGREEMENT
AMENDMENT
DATED AS OF JUNE 26, 2003
This AMENDMENT, dated as of June 26, 2003 (this "Agreement"),
under the $825,000,000 Credit Agreement, dated as of June 19, 2003 (such
agreement, as amended or otherwise modified, being referred to herein as the
"Credit Agreement"), among Xxxxxxx International, Inc. (f/k/a Xxxxxxx
Investments Ltd.), a Delaware corporation, Xxxxxxx Transit Ltd., an Ontario
corporation, Greyhound Canada Transportation Corp., an Ontario corporation, as
borrowers (the "Borrowers"), Citicorp North America, Inc., as administrative and
collateral agent (the "Agent"), the other agents and lenders named therein, and
Citigroup Global Markets Inc. and Credit Suisse First Boston, as joint lead
arrangers (the "Joint Lead Arrangers"). Capitalized terms used without
definition in this Agreement shall have the meanings provided in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, the Credit Agreement is fully effective as of the
date hereof;
WHEREAS, the Borrowers and the Lenders have agreed to amend
the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and subject to the
terms and conditions hereof, the parties hereto agree as follows:
SECTION 1. Amendment of Credit Agreement. The Credit Agreement
is amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended as
follows:
(i) By deleting, in the definition of "APPLICABLE
MARGIN", the word "the" before the term, "Revolving Credit Facility" in
clause (a) thereto, and replacing such word with the word, "each".
(ii) By deleting the definition of "APPROPRIATE LENDER"
and replacing in its place the following definition:
"APPROPRIATE LENDER" means, at any time, with respect
to (a) any of the Term B Facility, the Incremental
Term Facility, the US Revolving Credit Tranche A
Facility or the US Revolving Credit Tranche B
Facility, a
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Lender that has a Commitment with respect to such
Facility at such time, (b) the US Revolving Letter of
Credit Facility, (i) any US Revolving Issuing Bank
and (ii) if the other US Revolving Credit Tranche A
Lenders have made Revolving Letter of Credit Advances
pursuant to Section 2.03(c) that are outstanding at
such time, each such other US Revolving Credit
Tranche A Lender, (c) the Canadian Letter of Credit
Facility, (i) any Canadian Revolving Issuing Bank and
(ii) if the other US Revolving Credit Tranche A
Lenders have made Revolving Letter of Credit Advances
pursuant to Section 2.03(c) that are outstanding at
such time, each such other US Revolving Credit
Tranche A Lender, (d) the Canadian Subfacility, (i)
any Canadian Lender and (ii) if the other US
Revolving Credit Tranche A Lenders have made Canadian
Revolving Credit Advances pursuant to Section 2.02(c)
that are outstanding at such time, each such other US
Revolving Credit Tranche A Lender, (e) the Swing Line
Facility, (i) the Swing Line Bank and (ii) if the
other US Revolving Credit Tranche A Lenders have made
Swing Line Advances pursuant to Section 2.01(d) that
are outstanding at such time, each such other US
Revolving Credit Tranche A Lender and (f) the
Additional Letter of Credit Facility, the Additional
Issuing Bank.
(iii) By deleting the definition of "CANADIAN LETTER OF
CREDIT ADVANCE" and replacing in its place the following definition:
"CANADIAN LETTER OF CREDIT ADVANCE" means an advance
made by any Canadian Issuing Bank or any US Revolving
Credit Tranche A Lender pursuant to Section 2.03(c).
(iv) By deleting the definition of "REQUIRED LENDERS" and
replacing in its place the following definition:
"REQUIRED LENDERS" means, at any time, Lenders owed or holding
at least a majority in interest of the sum of, without
duplication, (a) the aggregate principal amount of the
Advances outstanding at such time, (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time, (c)
the aggregate Face Amount of all Bankers' Acceptances and
Notional Bankers' Acceptances outstanding at such time, (d)
the aggregate unused Term B Commitments at such time and (e)
the aggregate Unused Revolving Credit Commitments at such
time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from
the determination of Required Lenders at such time (A) the
aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such
time, (B) such Lender's Pro Rata Share of the aggregate
Available Amount of all Letters of Credit outstanding at such
time, (C) such Lender's Pro Rata Share of the aggregate Face
Amount of all Bankers' Acceptances and Notional Bankers'
Acceptances outstanding at such time, (D) the aggregate unused
Term B Commitment of such Lender at such time and (E) the
Unused Revolving Credit Commitment of such Lender at such
time.
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For purposes of this definition, (a) the aggregate principal
amount of US Letter of Credit Advances owing to any US Issuing
Bank and of Swing Line Advances owing to any Swing Line Bank,
the Available Amount of each US Letter of Credit shall be
considered to be owed to the US Revolving Credit Tranche A
Lenders ratably in accordance with their respective US
Revolving Credit Tranche A Commitments and (b) the aggregate
principal amount of Canadian Advances owing to any Canadian
Lender, of Canadian Letter of Credit Advances owing to any
Canadian Issuing Bank, the Available Amount of each Canadian
Letter of Credit and the Aggregate Face Amount of all Bankers'
Acceptances and Notional Bankers' Acceptances shall be
considered to be owed to the US Revolving Credit Tranche A
Lenders and to the Canadian Revolving Credit Lenders ratably
in accordance with their respective Revolving Credit
Commitments.
(v) By deleting the definition of "REQUIRED REVOLVING
CREDIT LENDERS" and replacing in its place the following definition:
"REQUIRED REVOLVING CREDIT TRANCHE A LENDERS" means,
at any time, Lenders (not including any Defaulting
Lender) owed or holding at least a majority in
interest of the sum of (a) the aggregate principal
amount of the US Revolving Credit Tranche A Advances
outstanding at such time, (b) the aggregate Available
Amount of all Letters of Credit outstanding at such
time, (c) the aggregate Face Amount of all Bankers'
Acceptances and Notional Bankers' Acceptances
outstanding at such time, and (d) the aggregate
Unused Revolving Credit Tranche A Commitments at such
time. For purposes of this definition, (a) the
aggregate principal amount of US Letter of Credit
Advances owing to any US Issuing Bank and of Swing
Line Advances owing to any Swing Line Bank, the
Available Amount of each US Letter of Credit shall be
considered to be owed to the US Revolving Credit
Tranche A Lenders ratably in accordance with their
respective US Revolving Credit Tranche A Commitments
and (b) the aggregate principal amount of Canadian
Revolving Credit Advances owing to any Canadian
Lender, of Canadian Letter of Credit Advances owing
to any Canadian Issuing Bank, the Available Amount of
each Canadian Letter of Credit and the Aggregate Face
Amount of all Bankers' Acceptances and Notional
Bankers' Acceptances shall be considered to be owed
to the US Revolving Credit Tranche A Lenders and to
the Canadian Revolving Credit Lenders ratably in
accordance with their respective US Revolving Credit
Tranche A Commitments.
(vi) By deleting the definition of "REVOLVING CREDIT
FACILITY" and replacing in its place the following definition:
"REVOLVING CREDIT FACILITY" means the US Revolving
Credit Tranche A Facility and the US Revolving Credit
Tranche B Facility.
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(vii) By deleting the definition of "REVOLVING ISSUING
BANKS" and replacing in its place the following definition:
"REVOLVING ISSUING BANKS" means each Initial US
Revolving Issuing Bank and any other US Revolving
Credit Tranche A Lender approved as a US Revolving
Issuing Bank or a Canadian Issuing Bank by the
Administrative Agent and any Eligible Assignee to
which a Letter of Credit Commitment hereunder has
been assigned pursuant to Section 8.07 so long as
each such US Revolving Credit Tranche A Lender or
each such Eligible Assignee expressly agrees to
perform in accordance with their terms all of the
obligations that by the terms of this Agreement are
required to be performed by it as a Revolving Issuing
Bank and notifies the Administrative Agent of its
Applicable Lending Office and the amount of its
Letter of Credit Commitment (which information shall
be recorded by the Administrative Agent in the
Register), for so long as such Initial US Revolving
Issuing Bank, US Revolving Credit Tranche A Lender or
Eligible Assignee, as the case may be, shall have a
Letter of Credit Commitment.
(viii) By deleting the definition of "SWING LINE ADVANCE"
and replacing in its place the following definition:
"SWING LINE ADVANCE" means an advance made by the
Swing Line Bank pursuant to Section 2.01(d) or any US
Revolving Credit Tranche A Lender pursuant to Section
2.02(b).
(ix) By deleting the definition of "SWING LINE BORROWING"
and replacing in its place the following definition:
"SWING LINE BORROWING" means a borrowing consisting
of a Swing Line Advance made by the Swing Line Bank
pursuant to Section 2.01(d) or the US Revolving
Credit Tranche A Lenders pursuant to Section 2.02(b).
(x) By deleting the definition of "UNUSED REVOLVING
CREDIT COMMITMENT" and replacing in its place the following definition:
"UNUSED REVOLVING CREDIT COMMITMENT" means the Unused
Revolving Credit Tranche A Commitment and the Unused
Revolving Credit Tranche B Commitment.
(xi) By deleting the definition of "US REVOLVING CREDIT
ADVANCE" and replacing in its place the following definition:
"US REVOLVING CREDIT ADVANCE" means a US Revolving
Credit Tranche A Advance and a US Revolving Credit
Tranche B Advance.
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(xii) By deleting the definition of "US REVOLVING CREDIT
BORROWING" and replacing in its place the following definition:
"US REVOLVING CREDIT BORROWING" means a US Revolving
Credit Tranche A Borrowing and a US Revolving Credit
Tranche B Borrowing.
(xiii) By deleting the definition of "US REVOLVING CREDIT
COMMITMENT" and replacing in its place the following definition:
"US REVOLVING CREDIT COMMITMENT" means a US Revolving
Credit Tranche A Commitment and a US Revolving Credit
Tranche B Commitment.
(xiv) By deleting the definition of "US REVOLVING CREDIT
LENDER" and replacing in its place the following definition:
"US REVOLVING CREDIT LENDER" means a US Revolving
Credit Tranche A Lender and a US Revolving Credit
Tranche B Lender.
(xv) By deleting the definition of "US REVOLVING CREDIT
NOTE" and replacing in its place the following definition:
"US REVOLVING CREDIT NOTE" means a US Revolving
Credit Tranche A Note and a US Revolving Credit
Tranche B Note.
(xvi) By deleting the definition of "US REVOLVING LETTER OF
CREDIT ADVANCE" and replacing in its place the following definition:
"US REVOLVING LETTER OF CREDIT ADVANCE" means an
advance made by any US Revolving Issuing Bank or any
US Revolving Credit Tranche A Lender pursuant to
Section 2.03(c).
(xvii) By inserting the following definitions in proper
alphabetical order:
"REQUIRED REVOLVING CREDIT TRANCHE B LENDERS" means,
at any time, Lenders (not including any Defaulting
Lender) owed or holding at least a majority in
interest of the sum of the aggregate principal amount
of the US Revolving Credit Tranche B Advances
outstanding at such time and the aggregate Unused
Revolving Credit Tranche B Commitments at such time.
"UNUSED REVOLVING CREDIT TRANCHE A COMMITMENT" means,
with respect to any US Revolving Credit Tranche A
Lender at any time, (a) such Lender's US Revolving
Credit Tranche A Commitment at such time minus (b)
the sum of (i) the aggregate principal amount of all
US Revolving Credit Tranche A Advances, Swing Line
Advances and Letter of Credit Advances made by such
Lender (in its capacity as a Lender) and
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outstanding at such time plus (without duplication)
(ii) such Lender's Pro Rata Share of (A) with respect
to US Revolving Credit Tranche A Lenders, the
aggregate Available Amount of all Revolving Letters
of Credit outstanding at such time and with respect
to Canadian Lenders, the aggregate Available Amount
of all Canadian Letters of Credit outstanding at such
time, (B) with respect to US Revolving Credit Tranche
A Lenders, the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Banks
pursuant to Section 2.03(c) and outstanding at such
time and with respect to the Canadian Lenders, the
aggregate principal amount of all Canadian Letter of
Credit Advances made by the Canadian Issuing Banks
pursuant to Section 2.03(c) and outstanding at such
time, (C) with respect to US Revolving Credit Tranche
A Lenders, the aggregate principal amount of all
Canadian US Revolving Credit Tranche A Advances made
by the Canadian Lenders and outstanding at such time,
(D) with respect to the US Revolving Credit Tranche A
Lenders, the aggregate principal amount of all Swing
Line Advances made by the Swing Line Banks pursuant
to Section 2.01(d) and outstanding at such time and
(E) the aggregate Face Amount of all Bankers'
Acceptances and Notional Bankers' Acceptances
outstanding at such time.
"UNUSED REVOLVING CREDIT TRANCHE B COMMITMENT" means,
with respect to any US Revolving Credit Tranche B
Lender at any time, such Lender's US Revolving Credit
Tranche B Commitment at such time minus the aggregate
principal amount of all US Revolving Credit Tranche B
Advances made by such Lender and outstanding at such
time.
"US REVOLVING CREDIT TRANCHE A ADVANCE" has the
meaning specified in Section 2.01(b)(i) and includes
US Revolving Letter of Credit Advances.
"US REVOLVING CREDIT TRANCHE B ADVANCE" has the
meaning specified in Section 2.01(b)(ii).
"US REVOLVING CREDIT TRANCHE A BORROWING" means a
borrowing consisting of simultaneous US Revolving
Credit Tranche A Advances of the same Type made by
the US Revolving Credit Tranche A Lenders.
"US REVOLVING CREDIT TRANCHE B BORROWING" means a
borrowing consisting of simultaneous US Revolving
Credit Tranche B Advances of the same Type made by
the US Revolving Credit Tranche B Lenders.
"US REVOLVING CREDIT TRANCHE A COMMITMENT" means,
with respect to any US Revolving Credit Tranche A
Lender at any time, the amount set forth opposite
such Lender's name on Schedule I hereto under the
caption "US Revolving Credit Tranche A Commitment"
or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender
in the Register maintained by the Administrative
Agent pursuant to
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Section 8.07(d) as such Lender's "US Revolving Credit
Tranche A Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.06.
"US REVOLVING CREDIT TRANCHE B COMMITMENT" means,
with respect to any US Revolving Credit Tranche B
Lender at any time, the amount set forth opposite
such Lender's name on Schedule I hereto under the
caption "US Revolving Credit Tranche B Commitment"
or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender
in the Register maintained by the Administrative
Agent pursuant to Section 8.07(d) as such Lender's
"US Revolving Credit Tranche B Commitment", as such
amount may be reduced at or prior to such time
pursuant to Section 2.06.
"US REVOLVING CREDIT TRANCHE A FACILITY" means, at
any time, the aggregate amount of the US Revolving
Credit Tranche A Lenders' US Revolving Credit Tranche
A Commitments at such time.
"US REVOLVING CREDIT TRANCHE B FACILITY" means, at
any time, the aggregate amount of the US Revolving
Credit Tranche B Lenders' US Revolving Credit Tranche
B Commitments at such time.
"US REVOLVING CREDIT TRANCHE A LENDER" means any US
Revolving Credit Lender that has a US Revolving
Credit Tranche A Commitment.
"US REVOLVING CREDIT TRANCHE B LENDER" means any US
Revolving Credit Lender that has a US Revolving
Credit Tranche B Commitment.
"US REVOLVING CREDIT TRANCHE A NOTE" means a
promissory note of the US Borrower payable to the
order of any US Revolving Credit Tranche A Lender in
substantially the form of Exhibit A-1(a) hereto,
evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the US
Revolving Credit Tranche A Advances and the Letter of
Credit Advances and the Swing Line Advances made by
such Lender, as amended.
"US REVOLVING CREDIT TRANCHE B NOTE" means a
promissory note of the US Borrower payable to the
order of any US Revolving Credit Tranche B Lender, in
substantially the form of Exhibit A-1(b) hereto,
evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the US
Revolving Credit Tranche B Advances, as amended.
(b) Section 2.01(b) of the Credit Agreement is hereby amended
as follows:
(i) By deleting the current Section 2.01(b) and replacing
in its place a new Section 2.01(b)(i):
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"(b)(i) The US Revolving Credit Tranche A Advances.
Each US Revolving Credit Tranche A Lender severally
agrees, on the terms and conditions hereinafter set
forth, to make advances (each a "US REVOLVING CREDIT
TRANCHE A ADVANCE") in US Dollars to the US Borrower
from time to time on any Business Day during the
period from the Effective Date until the Termination
Date in respect of the Revolving Credit Facility in
an amount for each such Advance not to exceed an
amount equal to such Lender's Unused Revolving Credit
Tranche A Commitment. The proceeds of any US
Revolving Credit Tranche A Advances made prior to the
Escrow Release Date shall be deposited directly into
the Escrow Account with the US Borrower only
acquiring rights to such proceeds subject to the
rights of the Lenders as beneficiaries pursuant to
the Escrow Agreement. Each US Revolving Credit
Tranche A Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000
in excess thereof (other than a Borrowing the
proceeds of which shall be used solely to repay or
prepay in full outstanding Swing Line Advances or
Letter of Credit Advances) and shall consist of US
Revolving Credit Tranche A Advances made
simultaneously by the US Revolving Credit Tranche A
Lenders ratably according to their US Revolving
Credit Tranche A Commitments. If the substantial
consummation of the Plan of Reorganization does not
occur prior to the Deadline Date, the proceeds of the
US Revolving Credit Tranche A Advances shall be
returned to the Administrative Agent for the account
of the US Revolving Credit Tranche A Lenders as set
forth in the Escrow Agreement. Within the limits of
each US Revolving Credit Tranche A Lender's Unused
Revolving Credit Tranche A Commitment in effect from
time to time, the US Borrower may borrow under this
Section 2.01(b)(i), prepay pursuant to Section
2.07(a) and reborrow under this Section 2.01(b)(i)."
(ii) By inserting a new Section 2.01(b)(ii) after the new
Section 2.01(b)(i):
"(b)(ii) The US Revolving Credit Tranche B Advances.
Each US Revolving Credit Tranche B Lender severally
agrees, on the terms and conditions hereinafter set
forth, to make advances (each a "US REVOLVING CREDIT
TRANCHE B ADVANCE") in US Dollars to the US Borrower
from time to time on any Business Day during the
period from the Effective Date until the Termination
Date in respect of the Revolving Credit Facility in
an amount for each such Advance not to exceed an
amount equal to such Lender's Unused Revolving Credit
Tranche B Commitment minus its Pro Rata Share of the
Blocked Amount at such time; provided that each such
Lender agrees to make advances of funds designated as
the Blocked Amount solely to the extent that the US
Borrower has been called upon to make payment of the
Stipulated Loss Value under any guarantee of the
Greyhound Leases in an amount for each such Advance
not to exceed such Lender's Unused Revolving Credit
Tranche B Commitment at such time. The proceeds of
any US Revolving Credit Tranche B Advances made
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prior to the Escrow Release Date shall be deposited
directly into the Escrow Account with the US Borrower
only acquiring rights to such proceeds subject to the
rights of the Lenders as beneficiaries pursuant to
the Escrow Agreement. Each US Revolving Credit
Tranche B Borrowing shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000
in excess thereof and shall consist of US Revolving
Credit Tranche B Advances made simultaneously by the
US Revolving Credit Tranche B Lenders ratably
according to their US Revolving Credit Tranche B
Commitments. If the substantial consummation of the
Plan of Reorganization does not occur prior to the
Deadline Date, the proceeds of the US Revolving
Credit Tranche B Advances shall be returned to the
Administrative Agent for the account of the US
Revolving Credit Tranche B Lenders as set forth in
the Escrow Agreement. Within the limits of each US
Revolving Credit Tranche B Lender's Unused Revolving
Credit Tranche B Commitment in effect from time to
time, the US Borrower may borrow under this Section
2.01(b)(ii), prepay pursuant to Section 2.07(a) and
reborrow under this Section 2.01(b)(ii)."
(c) Sections 2.01(c), 2.01(d), 2.01(f)(i), 2.01(f)(ii),
2.01(f)(iv), 2.02(a), 2.02(b), 2.02(c), 2.03(a), 2.03(b), 2.03(c),
2.04(c), 2.04(d), 2.04(e), 2.06(b)(ii), 2.06(b)(iv), 2.06(b)(v),
2.07(b)(iii), 2.07(b)(vi), 2.09(b), 3.03, 6.01, 6.02 and 7.05(c) of the
Credit Agreement are each hereby amended by, in each instance to the
extent such terms are used therein:
(i) Replacing therein the term, "Revolving Credit
Advances" with the term, "US Revolving Credit Tranche A Advances";
(ii) Replacing therein the term, "Revolving Credit
Borrowing" with the term, "US Revolving Credit Tranche A Borrowing";
(iii) Replacing therein the term, "Revolving Credit
Facility" with the term, "US Revolving Credit Tranche A Facility";
(iv) Replacing therein the term, "Revolving Credit Lender"
with the term, "US Revolving Credit Tranche A Lender";
(v) Replacing therein the term, "Revolving Lender" with
the term, "US Revolving Credit Tranche A Lender";
(vi) Replacing therein the term, "Unused Revolving Credit
Commitments" with the term, "Unused Revolving Credit Tranche A
Commitments";
(vii) Replacing therein the term, "US Revolving Credit
Advances" with the term, "US Revolving Credit Tranche A Advances";
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(viii) Replacing therein the term, "US Revolving Credit
Facility" with the term, "US Revolving Credit Tranche A Facility";
(ix) Replacing therein the term, "US Revolving Credit
Lender" with the term, "US Revolving Credit Tranche A Lender"; and
(x) Replacing therein the term, "US Revolving Lender"
with the term, "US Revolving Credit Tranche A Lender".
(d) Section 2.04(b) of the Credit Agreement is hereby
amended by:
(i) In each instance, replacing the term, (x) "US
Revolving Credit Lenders" with the term, "US Revolving Credit
Tranche A Lenders", (y) "Revolving Credit Facility" with the
term, "US Revolving Credit Tranche A Facility" and (z) "US
Revolving Credit Advances" with the term, "US Revolving Credit
Tranche A Advances".
(ii) Adding "(i)" after the section heading, "US Revolving
Credit Advances.".
(iii) Adding a new Section 2.04(b)(ii):
"(ii) The applicable US Borrower shall repay to the
Administrative Agent for the ratable account of the US
Revolving Credit Tranche B Lenders on the Termination Date in
respect of the US Revolving Credit Tranche B Facility the
aggregate principal amount of the US Revolving Tranche B
Credit Advances then outstanding."
(e) Section 2.09(a) of the Credit Agreement is hereby
amended by replacing the term, "US Revolving Credit Lender" with the
term, "US Revolving Credit Tranche A Lender".
(f) Section 8.01 of the Credit Agreement is hereby
amended by:
(i) In each instance, replacing therein the term,
"Revolving Credit Lender" with the term, "US Revolving Credit Tranche A
Lender"; and
(ii) Adding the following proviso immediately before the
last heretofore existing proviso:
"provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Required Revolving Credit
Tranche B Lenders, adversely affect the rights of the US
Revolving Tranche B Lenders and there shall be no amendment to
the definition of Required Revolving Credit Tranche B Lenders
without the consent of all the US Revolving Credit Tranche B
Lenders;"
(g) Schedule I of the Credit Agreement is hereby deleted
in its entirety and replaced with Schedule I hereto.
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(h) Exhibit A-1 of the Credit Agreement is hereby deleted
in its entirety and replaced with Exhibit A-1(a) attached hereto.
(i) Exhibit A-1(b) hereto is hereby added to the Credit
Agreement.
SECTION 2. Conditions to Effectiveness. The provisions of
Section 1 of this Agreement shall become effective as of the date first above
written (the "Closing Date") when, and only when, the Agent shall have received
confirmation of each of the following, each in form and substance satisfactory
to the Agent:
(i) Execution of Counterparts. The Agent shall have
received counterparts of this Agreement duly executed by each of the
Borrowers and the Lenders party hereto.
(ii) Execution of Consents. The Agent shall have received
counterparts of the consent appended hereto, duly executed by each of
the Loan Parties (other than the Borrowers) consenting to the execution
of this Agreement.
(iii) Payment of Fees and Expenses. The Agent shall have
determined that all agency, trustee, custodial, filing service, legal
and other fees and disbursements incurred and invoiced through the day
immediately prior to the Closing Date, including all fees of the Agent
and its counsel, shall have been paid in full by the Borrowers.
(iv) No Default. No Default shall have occurred and be
continuing.
SECTION 3. Confirmation of Representations and Warranties.
Each of the Borrowers hereby represents and warrants, on and as of the date
hereof, that the representations and warranties contained in the Credit
Agreement are correct and true in all material respects on and as of the date
hereof, before and after giving effect to this Agreement, as though made on and
as of the date hereof, other than any such representations or warranties that,
by their terms, refer to a specific date.
SECTION 4. Reference to and Effect on the Transaction
Documents. (a) On and after the effectiveness of this Agreement, each reference
in the Credit Agreement to "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other transaction
documents to the "Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as modified by this Agreement.
(b) The execution, delivery and effectiveness of this
Agreement shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Lender or the Agent under
any of the transaction documents, nor constitute a waiver of any
provision of any of the transaction documents.
SECTION 5. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall
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constitute but one and the same agreement. 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 6. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, and shall
be subject to the jurisdictional and service provisions of the Credit Agreement,
as if this were a part of the Credit Agreement.
SECTION 7. Entire Agreement; Modification. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, there being no other agreements or understandings, oral,
written or otherwise, respecting such subject matter, any such agreement or
understanding being superseded hereby, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, and
may not be amended, extended or otherwise modified, except in a writing executed
in whole or in counterparts by each party hereto.
[Signatures follow.]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXXXXXX INTERNATIONAL, INC. (f/k/a
XXXXXXX INVESTMENTS LTD.)
By ____________________________________
Name:
Title:
XXXXXXX TRANSIT LTD.
By ____________________________________
Name:
Title:
GREYHOUND CANADA TRANSPORTATION CORP.
By ____________________________________
Name:
Title:
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as Collateral Agent
By ______________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch,
as Syndication Agent
By ______________________________
Name:
Title:
By ______________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Co-Documentation Agent
By ______________________________
Name:
Title:
INITIAL LENDERS
CITICORP NORTH AMERICA, INC.
By ______________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch
By ______________________________
Name:
Title:
By ______________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By ______________________________
Name:
Title:
INITIAL REVOLVING ISSUING BANK
CITIBANK, N.A.
By ______________________________
Name:
Title:
INITIAL CANADIAN ISSUING BANK
CITIBANK CANADA
as Initial Canadian Issuing Bank
By ______________________________
Name:
Title:
ADDITIONAL ISSUING BANK
CITIBANK, N.A.,
as Additional Issuing Bank
By ______________________________
Name:
Title:
SWING-LINE LENDER
CITICORP NORTH AMERICA, INC.
By ______________________________
Name:
Title:
CANADIAN LENDERS
CITIBANK CANADA,
as Canadian Lender
By ______________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON (TORONTO BRANCH),
as Canadian Lender
By ______________________________
Name:
Title:
GUARANTOR/GRANTOR CONSENT
Dated as of June __, 2003
Each of the undersigned as (a) Guarantors under (x) the US
Subsidiary Guaranty or (y) the Canadian Subsidiary Guarantee, each dated as of
June 19, 2003 (collectively, the "Guaranties") in favor of the Secured Parties
(as defined in the Credit Agreement referred to in the foregoing Guaranties) and
(b) Grantors under the Collateral Documents (as defined in the Credit Agreement
referred to in the foregoing Guaranties), hereby consents to such Amendment and
hereby confirms and agrees that (i) notwithstanding the effectiveness of such
Amendment, the Guaranties and each Collateral Document is, and shall continue to
be, in full force and effect and is hereby ratified and confirmed in all
respects, except that, on and after the effectiveness of such Amendment, each
reference in the Guaranties or any Collateral Document to the "Credit
Agreement", "thereunder", "thereof" or words of like import shall mean and be a
reference to the Credit Agreement, as amended by such Amendment and (ii) the
Collateral Documents to which such Grantor is a party and all of the Collateral
described therein do, and shall continue to, secure the payment of all of the
Secured Obligations (as defined in the Credit Agreement referred to in the
foregoing Guaranties).
US SUBSIDIARY
GUARANTORS/GRANTORS:
A1 LEASING, INC.,
a Florida corporation
XXXX TRANSPORTATION SERVICE, INC.,
a New York corporation
ALLIED BUS SALES, INC.,
an Indiana corporation
AMBULANCE ACQUISITION, INC.,
a Delaware corporation
AMERICAN EMERGENCY PHYSICIANS MANAGEMENT, INC.,
a California corporation
AMERICAN INVESTMENT ENTERPRISES, INC.,
a Nevada corporation
AMERICAN MEDICAL PATHWAYS, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE DELAWARE VALLEY, LLC,
a Delaware limited liability company
AMERICAN MEDICAL RESPONSE HOLDINGS, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE MANAGEMENT, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC.,
a Pennsylvania corporation
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,
an Oregon corporation
AMERICAN MEDICAL RESPONSE OF COLORADO, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF CONNECTICUT,
INCORPORATED,
a Connecticut corporation
AMERICAN MEDICAL RESPONSE OF GEORGIA, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF ILLINOIS, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF INLAND EMPIRE,
a California corporation
AMERICAN MEDICAL RESPONSE OF MASSACHUSETTS,
INC.,
a Massachusetts corporation
AMERICAN MEDICAL RESPONSE OF NORTH CAROLINA,
INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF OKLAHOMA, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF SOUTH CAROLINA,
INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF SOUTHERN
CALIFORNIA,
a California corporation
AMERICAN MEDICAL RESPONSE OF TENNESSEE, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE OF TEXAS, INC.,
a Delaware corporation
AMERICAN MEDICAL RESPONSE WEST,
a California corporation
AMERICAN MEDICAL RESPONSE, INC.,
a Delaware corporation
AMR BROCKTON, L.L.C.,
a Delaware limited liability company
ASSOCIATED AMBULANCE SERVICE INC.,
a New York corporation
ATLANTIC AMBULANCE SERVICES ACQUISITION, INC.,
a Delaware corporation
ATLANTIC/KEY WEST AMBULANCE, INC.,
a Delaware corporation
ATLANTIC/PALM BEACH AMBULANCE, INC.,
a Delaware corporation
BROWARD AMBULANCE, INC.,
a Delaware corporation
XXXXXXX X. XXXXXXXX, INC.,
a Hawaii corporation
CHATHAM COACH LINES, INC.,
a Delaware corporation
CONCORDE ADJUSTERS, INC.,
a Delaware corporation
COORDINATED HEALTH SERVICES, INC.,
a Pennsylvania corporation
DESERT VALLEY MEDICAL TRANSPORT, INC.,
a California corporation
ECEP, INC.,
a Missouri corporation
EMCARE ANESTHESIA SERVICES, INC.,
a Delaware corporation
EMCARE CONTRACT OF ARKANSAS, INC.,
an Arkansas corporation
EMCARE HOLDINGS INC.,
a Delaware 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, INC.,
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
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
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 PROVIDERS, INC.,
a Missouri corporation
EMCARE PHYSICIAN SERVICES, INC.,
a Delaware corporation
EMCARE SERVICES OF ILLINOIS, INC.,
an Illinois corporation
EMCARE SERVICES OF MASSACHUSETTS, INC.,
a Massachusetts corporation
EMCARE, INC.,
a Delaware 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
FIVE COUNTIES AMBULANCE SERVICE, INC.,
a New York corporation
FLORIDA EMERGENCY PARTNERS, INC.,
a Texas corporation
FOUNTAIN AMBULANCE SERVICE, INC.,
an Alabama corporation
XXXXXX TRANSFER SERVICE, INC.,
a Mississippi corporation
GOLDEN GATE ASSOCIATES,
a California corporation
HANK'S ACQUISITION CORP.,
an Alabama corporation
HEALTHCARE ADMINISTRATIVE SERVICES, INC.,
a Delaware corporation
HELIX PHYSICIANS MANAGEMENT, INC.,
a California corporation
HEMET VALLEY AMBULANCE SERVICE, INC.,
a California corporation
INTERNATIONAL LIFE SUPPORT, INC.,
a Hawaii corporation
XXXX AMBULANCE SERVICE, INC.,
a Wisconsin corporation
XXXXXXX INTERNATIONAL FINANCE CORPORATION,
INC.,
a Delaware corporation
XXXXXXX MEDICAL HOLDINGS, INC.,
a Delaware corporation
XXXXXXX MEDICAL TRANSPORTATION, INC.,
a Delaware corporation
XXXXXXX ONE, INC.,
a Delaware corporation
XXXXXXX TRANSIT HOLDINGS, INC.,
a Delaware corporation
XXXXXXX TRANSIT MANAGEMENT COMPANY, INC.,
a Pennsylvania corporation
XXXXXXX TRANSIT SERVICES, INC.,
a Delaware corporation
XXXXXXX TRANSIT, INC.,
a Delaware corporation
XXXXXXX TRANSPORTATION HOLDINGS, INC.,
a Delaware corporation
XXXXXXX TRANSPORTATION MANAGEMENT INC.,
an Ohio corporation
XXXXXXX TRANSPORTATION, INC.,
a Delaware corporation
XXXXXXX TWO, INC.,
a Delaware corporation
XXXXXXX USA, INC.,
a New York corporation
LIFECARE AMBULANCE SERVICE, INC.,
an Illinois corporation
LIFEFLEET SOUTHEAST, INC.,
a Florida corporation
LINC TRANSPORTATION, LLC,
a Delaware corporation
MEDEVAC MEDICAL RESPONSE, INC.,
a Missouri corporation
MEDEVAC MIDAMERICA, INC.,
a Missouri corporation
MEDIC ONE AMBULANCE SERVICES, INC.,
a Delaware corporation
MEDIC ONE OF XXXX, INC.,
a Georgia corporation
MEDI-CAR AMBULANCE SERVICE, INC.,
a Florida corporation
MEDI-CAR SYSTEMS, INC.,
a Florida corporation
MEDLIFE EMERGENCY MEDICAL SERVICE, INC.,
an Alabama corporation
MERCY AMBULANCE OF EVANSVILLE, INC.,
an Indiana corporation
MERCY LIFE CARE,
a California corporation
MERCY, INC.,
a Nevada corporation
METRO AMBULANCE SERVICE (RURAL), INC.,
a Delaware corporation
METRO AMBULANCE SERVICE, INC.,
a Delaware corporation
METRO AMBULANCE SERVICES, INC.,
a Georgia corporation
METROPOLITAN AMBULANCE SERVICE,
a California corporation
MIDWEST AMBULANCE MANAGEMENT COMPANY,
a Delaware corporation
MOBILE MEDIC AMBULANCE SERVICE, INC.,
a Delaware corporation
XXXXXX XXXXX XXXXXX, INC.,
a California corporation
OLD STAT, INC.,
a Delaware corporation
PACIFIC EMERGENCY SPECIALISTS MANAGEMENT, INC.,
a California corporation
PARAMED, INC.,
a Michigan corporation
PARK AMBULANCE SERVICE INC.,
a New York corporation
PHYSICIAN ACCOUNT MANAGEMENT, INC.,
a Florida corporation
PHYSICIANS & SURGEONS AMBULANCE SERVICE, INC.,
an Ohio corporation
PROVIDER ACCOUNT MANAGEMENT, INC.,
a Delaware corporation
XXXXXXX AMBULANCE SERVICE, INC.,
a Georgia corporation
XXXXXX EASTERN AMBULANCE SERVICE, INC.,
a Florida corporation
REGIONAL EMERGENCY SERVICES, L.P.,
a Delaware limited partnership
REIMBURSEMENT TECHNOLOGIES, INC.,
a Pennsylvania corporation
S.C. FOOD SERVICES (U.S.A.), INC.,
a Delaware corporation
SAFE RIDE SERVICES, INC.,
an Arizona corporation
SAN FRANCISCO AMBULANCE SERVICE, INC.,
a California corporation
SEMINOLE COUNTY AMBULANCE, INC.,
a Delaware corporation
SPRINGS AMBULANCE SERVICE, INC.,
a California corporation
STAT PHYSICIANS, INC.,
a Florida corporation
SUNRISE HANDICAP TRANSPORT CORP.,
a New York corporation
SUTRAN, INC.,
a South Dakota corporation
TEK, INC.,
an Illinois corporation
THE XXXXX GROUP, INC.,
a Texas corporation
TIDEWATER AMBULANCE SERVICE, INC.,
a Virginia corporation
TIFTON MANAGEMENT SERVICES, INC.,
a Georgia corporation
XXXXX COUNTY EMERGENCY MEDICAL SERVICES, INC.,
a Georgia corporation
XXXXXX EMERGENCY SERVICES, INC.,
a Georgia corporation
XXX XXXX OF TUCSON, INC.,
an Arizona corporation
By: __________________________________
Name:
Title:
CANADIAN SUBSIDIARY
GUARANTORS/GRANTORS:
331001 ALBERTA LTD.
000000 XXXXXXX INC.
3765101 CANADA INC.
501781 ONTARIO LIMITED
518841 ALBERTA INC.
ATHLETIC INJURY MANAGEMENT SERVICES INC.
AUTOBUS TRANSCO (1988) INC.
BARREL TAXI LTD.
BEAVERTON & DISTRICT AMBULANCE SERVICES LTD.
BOOK AMBULANCE SERVICE LTD.
XXXXX COUNTY AMBULANCE SERVICE LIMITED
CANADIAN MEDICAL RESPONSE (NOVA SCOTIA) LIMITED
3524302 CANADA INC.
CAPITAL BUS SALES (1988) LIMITED
CHECKER CABS (EDMONTON) INC.
XXXX COACH TRAVEL INC.
XXXX LINE OF VANCOUVER HOLDINGS LTD.
MANHATTAN EQUIPMENT SUPPLY COMPANY LIMITED
MEDTRANS MEDICAL TRANSPORTATION LTD.
PENETANG-MIDLAND COACH LINES LIMITED
S.C. FOOD SERVICES (CANADA) INC./
SERVICES ALIMENTAIRES S.C. (CANADA) INC.
SUPERIOR AMBULANCE (1986) LIMITED
THE XXXX LINE OF VICTORIA LTD.
VOYAGEUR CORP.
N.N. XXX X. INVESTMENTS LTD.
X. XXXXXX'X BUS LINES LTD.
GCTC LEASING LTD.
2026922 ONTARIO LIMITED
2026921 ONTARIO LIMITED
By: __________________________________
Name:
Title:
SCHEDULE I
COMMITMENTS
====================================================================================================================================
US REVOLVING US REVOLVING CANADIAN CANADIAN ADDITIONAL
CREDIT CREDIT LETTER OF REVOLVING LETTER OF LETTER OF
NAME OF INITIAL TERM B TRANCHE A TRANCHE B CREDIT CREDIT CREDIT CREDIT SWING LINE
LENDER COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
====================================================================================================================================
Citicorp North 372,000,000 42,500,000 52,000,000 0 0 0 0 25,000,000
America, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Credit Suisse First 248,000,000 42,500,000 33,000,000 0 0 0 0 0
Boston, acting
through its Cayman
Islands Branch
------------------------------------------------------------------------------------------------------------------------------------
Credit Suisse First 0 0 0 0 15,750,000 0 0 0
Boston (Toronto
Branch)
------------------------------------------------------------------------------------------------------------------------------------
General Electric 5,000,000 15,000,000 15,000,000 0 0 0 0 0
Capital Corporation
------------------------------------------------------------------------------------------------------------------------------------
Citibank Canada 0 0 0 0 19,250,000 15,000,000 0 0
------------------------------------------------------------------------------------------------------------------------------------
Citibank, N.A. 0 0 0 35,000,000 0 0 100,000,000 0
------------------------------------------------------------------------------------------------------------------------------------
TOTAL 625,000,000 100,000,000 100,000,000 35,000,000 35,000,000 15,000,000 100,000,000 25,000,000
====================================================================================================================================
APPLICABLE LENDING OFFICES
=========================================================================================================
DOMESTIC,
EURODOLLAR AND CANADIAN
NAME OF INITIAL LENDER LENDING OFFICE
=========================================================================================================
Citicorp North America, Inc. Citicorp North America, Inc.
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
Citibank Canada
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxx Xxxxx
Fax: (000) 000-0000
---------------------------------------------------------------------------------------------------------
Credit Suisse First Boston, acting through its Cayman Credit Suisse First Boston
Islands Branch Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Fax: (000) 000-0000
With a copy to:
Credit Suisse First Xxxxxx
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Fax: (000) 000-0000
---------------------------------------------------------------------------------------------------------
Credit Suisse First Boston (Toronto Branch) Credit Suisse First Boston (Toronto Branch)
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxxxxxx Xxx
Fax: (000) 000-0000
With a copy to:
Credit Suisse First Boston (Toronto Branch)
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
=========================================================================================================
=========================================================================================================
DOMESTIC,
EURODOLLAR AND CANADIAN
NAME OF INITIAL LENDER LENDING OFFICE
=========================================================================================================
General Electric Capital Corporation General Electric Capital Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
---------------------------------------------------------------------------------------------------------
Citibank Canada Citibank Canada
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
Citibank Canada
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxx Xxxxx
Fax: (000) 000-0000
---------------------------------------------------------------------------------------------------------
Citibank, N.A. Citibank, N.A.
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: (000) 000-0000
With a copy to:
Citibank Canada
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attn: Xxx Xxxxx
Fax: (000) 000-0000
=========================================================================================================
EXHIBIT A-1(a)
FORM OF
US REVOLVING CREDIT TRANCHE A NOTE
$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, __________________, a
_________ corporation (the "BORROWER"), HEREBY PROMISES TO PAY _________________
(the "LENDER") for the account of its Applicable Lending Office (as defined in
the Credit Agreement referred to below) the aggregate principal amount of the US
Revolving Credit Tranche A Advances, the Revolving Letter of Credit Advances and
the Swing Line Advances (each as defined below) owing to the Lender by the
Borrower pursuant to the $825,000,000 Credit Agreement dated as of June 19, 2003
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; terms defined therein, unless otherwise defined
herein, being used herein as therein defined) among Xxxxxxx Investments Ltd., an
Ontario corporation and predecessor to Xxxxxxx International, Inc., a Delaware
corporation, Xxxxxxx Transit Ltd., an Ontario corporation, and Greyhound Canada
Transportation Corp., an Ontario corporation, as borrowers thereunder, the
Lender and certain other lender parties party thereto, Citicorp North America,
Inc., as Collateral Agent and as Administrative Agent for the Lender and such
other lender parties, on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each US Revolving Credit Tranche A Advance, Revolving Letter of Credit
Advance and Swing Line Advance from the date of such US Revolving Credit Tranche
A Advance, Revolving Letter of Credit Advance or Swing Line Advance, as the case
may be, until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp North America, Inc., as Administrative
Agent, at _______________, New York, New York __________ in same day funds. Each
US Revolving Credit Tranche A Advance, Revolving Letter of Credit Advance and
Swing Line Advance owing to the Lender by the Borrower and the maturity thereof,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto,
which is part of this Promissory Note; provided, however, that the failure of
the Lender to make any such recordation or endorsement shall not affect the
Obligations of the Borrower under this Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making or purchasing of advances
(variously, the "US REVOLVING CREDIT TRANCHE A ADVANCES", the "REVOLVING LETTER
OF CREDIT ADVANCES" or the "SWING LINE ADVANCES") by the Lender to or for the
benefit of the Borrower from time to time in an aggregate amount not to exceed
at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such US Revolving Credit
Tranche A Advance, Revolving Letter of Credit Advance and Swing Line Advance
being evidenced by this Promissory Note,
2
and (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. The obligations of the Borrower under this Promissory Note
and the other Loan Documents, and the obligations of the other Loan Parties
under the Loan Documents, are secured by the Collateral as provided in the Loan
Documents.
This Note shall be governed by, and construed in accordance
with, the laws of the state of New York.
[BORROWER]
By ______________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
====================================================================================================================
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
====================================================================================================================
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EXHIBIT A-1(b)
FORM OF
US REVOLVING CREDIT TRANCHE B NOTE
$_______________ Dated: _________ __, ____
FOR VALUE RECEIVED, the undersigned, __________________, a
_________ corporation (the "BORROWER"), HEREBY PROMISES TO PAY ________________
(the "LENDER") for the account of its Applicable Lending Office (as defined in
the Credit Agreement referred to below) the aggregate principal amount of the US
Revolving Credit Tranche B Advances (as defined below) owing to the Lender by
the Borrower pursuant to the $825,000,000 Credit Agreement dated as of June 19,
2003 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"; terms defined therein, unless otherwise
defined herein, being used herein as therein defined) among Xxxxxxx Investments
Ltd., an Ontario corporation and predecessor to Xxxxxxx International, Inc., a
Delaware corporation, Xxxxxxx Transit Ltd., an Ontario corporation, and
Greyhound Canada Transportation Corp., an Ontario corporation, as borrowers
thereunder, the Lender and certain other lender parties party thereto, Citicorp
North America, Inc., as Collateral Agent and as Administrative Agent for the
Lender and such other lender parties, on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each US Revolving Credit Tranche B Advance from the date of such US
Revolving Credit Tranche B Advance until such principal amount is paid in full,
at such interest rates, and payable at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp North America, Inc., as Administrative
Agent, at _______________, New York, New York __________ in same day funds. Each
US Revolving Credit Tranche B Advance owing to the Lender by the Borrower and
the maturity thereof, and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed on
the grid attached hereto, which is part of this Promissory Note; provided,
however, that the failure of the Lender to make any such recordation or
endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making or purchasing of advances (the
"US REVOLVING CREDIT TRANCHE B ADVANCES") by the Lender to or for the benefit of
the Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such US Revolving Credit Tranche B Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified. The obligations of the
Borrower under this Promissory Note and the other Loan Documents, and the
2
obligations of the other Loan Parties under the Loan Documents, are secured by
the Collateral as provided in the Loan Documents.
This Note shall be governed by, and construed in accordance
with, the laws of the state of New York.
[BORROWER]
By: ______________________________
Title:
3
ADVANCES AND PAYMENTS OF PRINCIPAL
====================================================================================================================
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
====================================================================================================================
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====================================================================================================================
