Exhibit 10.20
FIRST SUPPLEMENTAL INDENTURE
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FIRST SUPPLEMENTAL INDENTURE, dated as of August , 1997, among
Atlantic Express Transportation Corp., a New York corporation (the "Company") ,
the Guarantors named herein and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee").
WHEREAS, the Company has duly issued its 103/4% Senior Secured Notes Due
2004 (the "Notes"), in the aggregate principal amount of $110,000,000 pursuant
to an Indenture among the Company, the Guarantors named therein and the Trustee
dated as of February 4, 1997 (the "Indenture"), and the Notes are outstanding on
the date hereof; and
WHEREAS, Section 9.2 of the Indenture provides that the Company and the
Trustee may amend any provision of the Indenture with the written consent of the
Holders of at least a majority of the principal amount of the then outstanding
Notes and execute a supplemental indenture; and
WHEREAS, the Company solicited, and has received, consents upon the terms
and subject to the conditions set forth in the Consent Solicitation Statement
dated August 5, 1997 and the accompanying consent letter, from Holders
representing at least a majority in aggregate principal amount of its
outstanding Notes to certain amendments described therein to the Indenture and
the related Collateral Agreements and Intercreditor Agreement; and
WHEREAS, Section 10.12 of the Indenture provides, among other things, that
the Company shall cause each Restricted Subsidiary that is formed or acquired
after the date of the Indenture to become a Guarantor thereunder and execute and
deliver a supplemental indenture pursuant to which such Restricted Subsidiaries
shall unconditionally guarantee all of the Company's Obligations as set forth in
Section 10.7 of the Indenture; and
WHEREAS, Section 9.1 of the Indenture provides, among other things, that
the Company, the Guarantors and the Trustee may amend or supplement the
Indenture without the consent of any Holder to comply with Article 10.12 thereof
and execute a supplemental indenture ; and
WHEREAS, it is provided in Section 9.4 of the Indenture that a supplemental
indenture becomes effective in accordance with its terms and thereafter binds
every Holder; and
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 DEFINITIONS.
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Capitalized terms not defined herein shall have the meanings given to such
terms in the Indenture.
SECTION 2 AMENDMENTS TO THE INDENTURE
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SECTION 2.1 AMENDMENT TO THE EXECUTION AND AUTHENTICATION COVENANT.
The third paragraph of Section 2.2 of the Indenture is hereby amended and
restated to read in its entirety as follows:
"The Trustee shall, upon a Company Order, authenticate for original
issue up to $150,000,000 aggregate principal amount of the Notes. The
aggregate principal amount of Notes outstanding at any time may not
exceed $150,000,000 except as provided in Section 2.7 hereof."
SECTION 2.2 AMENDMENT TO THE "OPTIONAL REDEMPTION" PROVISION.
Section 3.7(b) of the Indenture is hereby amended and restated to read in
its entirety as follows:
"(b) Notwithstanding the foregoing, at any time or from time to time
prior to February 1, 2000, the Company may, at its option, redeem up
to one-third of the original principal amount of the Notes, at a
redemption price of 110.75% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the applicable redemption
date, with the net cash proceeds of one or more Public Equity
Offerings; provided, that (a) such redemption shall occur within 90
days of the date of closing of such public offering and (b) at least
$100.0 million aggregate principal amount of Notes remains outstanding
immediately after giving effect to each such redemption."
SECTION 2.3 AMENDMENT TO THE "LIMITATION ON INCURRENCE OF INDEBTEDNESS"
PROVISION
Section 4.9(b)(iv) of the Indenture is hereby amended and restated to read
in its entirety as follows:
"(iv) (A) Indebtedness arising out of Capital Lease Obligations or
Purchase Money Obligations (collectively, "Purchase Money
Indebtedness") in an aggregate amount not to exceed $10.0 million
outstanding at any time, and (B) a $2.2 million aggregate principal
amount note and mortgage relating to certain real property acquired in
the acquisition of Central New York Coach Sales & Service, Inc.,
Jersey Bus Sales, Inc., and related property (collectively, "Central")
by the Company."
SECTION 2.4 AMENDMENT TO THE LIMITATION ON LIENS.
Section 4.12(a) of the Indenture is hereby amended and restated to read in
its entirety as follows:
"The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly create, incur, assume or suffer to exist
(a) any Lien on any asset (including, without limitation, all real,
tangible or intangible property) of the Company or any Restricted
Subsidiary, whether now owned or hereafter acquired, or on any income
or
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profits therefrom, or assign or convey any right to receive income
therefrom, except (i) Liens securing Indebtedness permitted to be
incurred under the Revolving Credit Facility; PROVIDED, that the
Notes are secured by a second priority security interest in the assets
subject to such Liens, (ii) Purchase Money Liens, (iii) Permitted
Liens, and (iv) a $2.2 million aggregate principal amount note and
mortgage relating to certain real property acquired in the acquisition
of Central by the Company or..."
SECTION 2.5 AMENDMENT TO THE LINE OF BUSINESS COVENANT.
Section 4.18 of the Indenture is hereby amended and restated to read in its
entirety as follows:
"The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than (a) the business conducted or
proposed to be conducted by the Company and the Restricted
Subsidiaries on the Closing Date and (b) any transportation business
that is ancillary or complementary to any business described in clause
(a) above. The foregoing restriction will not (i) prohibit the
acquisition or operation of Central by the Company or (ii) prevent the
Company from engaging in the same lines of business conducted or
proposed to be conducted by Central as of the date the acquisition of
Central is consummated (the "Acquisition Date"), provided that such
business is conducted only in territories contiguous with the
territories in which Central conducted or proposed to conduct its
business as of the Acquisition Date."
SECTION 2.6 CONFORMING CHANGES TO THE INDENTURE.
The Indenture is otherwise amended, to the extent necessary, to permit the
issuance of up to $150,000,000 of the Company's 103/4% Senior Secured Notes
due 2004.
SECTION 3 GUARANTEE BY RESTRICTED SUBSIDIARIES
Each of Atlantic Express of L.A. Inc., Central New York Coach Sales &
Service, Inc. and Jersey Bus Sales, Inc. unconditionally guarantees all of the
Company's Obligations as set forth in Section 10.7 of the Indenture in the same
manner and to the same extent as if it had executed the Indenture as one of the
parties thereto defined as the "Guarantors" therein.
SECTION 4 MISCELLANEOUS
SECTION 4.1 GOVERNING LAW
THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE CONSTRUED, INTERPRETED AND THE
RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE
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BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OR ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OR ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET
FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PURCHASER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
SECTION 4.2 CONTINUING AGREEMENT.
Except as herein amended, all terms, provisions and conditions of the
Indenture, all Exhibits thereto and all documents executed in connection
therewith shall continue in full force and effect and shall remain enforceable
and binding in accordance with their terms.
SECTION 4.3 CONFLICTS.
In the event of a conflict between the terms and conditions of the
Indenture and the terms and conditions of this First Supplemental Indenture,
then the terms and conditions of this First Supplemental Indenture shall
prevail.
SECTION 4.4 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 4.5 HEADINGS, ETC.
The Headings of the Sections of this First Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Supplemental Indenture as of the date first written above.
ATLANTIC EXPRESS
TRANSPORTATION CORP.
By: /s/ XXXXXXX XXXXX
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Name: XXXXXXX XXXXX
Title: President
Attest:
/s/ XXXXXX XXXXXXXXX
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Name: XXXXXX XXXXXXXXX
Title: Chief Financial Officer
GUARANTORS
AMBOY BUS CO., INC. BROOKFIELD TRANSIT INC.
STATEN ISLAND BUS, INC. ATLANTIC PARATRANS, INC.
XXXXXXX CAPITAL CORP. 180 JAMAICA CORP.
METROPOLITAN ESCORT SERVICE, INC. ATLANTIC EXPRESS COACHWAYS, INC.
MERIT TRANSPORTATION CORP. ATLANTIC EXPRESS OF PENNSYLVANIA, INC.
TEMPORARY TRANSIT SERVICE, INC. ATLANTIC PARATRANS OF KENTUCKY INC.
ATLANTIC-XXXXXX, INC. XXXXXXX BUS SERVICE, INC.
COURTESY BUS CO., INC. G.V.D. LEASING CO., INC.
X. XXXX, INC. BLOCK 7932, INC.
XXXXXXX EQUITY CORP. ATLANTIC-CONN. TRANSIT, INC.
METRO AFFILIATES, INC. ATLANTIC EXPRESS OF MISSOURI INC.
MIDWAY LEASING INC. ATLANTIC EXPRESS OF L.A. INC.
CENTRAL NEW YORK COACH JERSEY BUS SALES, INC.
SALES & SERVICE, INC.
By: /s/ XXXXXXX XXXXX
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Name: XXXXXXX XXXXX
Title: President
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THE BANK OF NEW YORK, as Trustee
By: /s/ XXX XXXXX
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Name: XXX XXXXX
Title: Vice President
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