Exhibit 10.41
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT is entered into as of February 26, 2002, by and among
CONGRESS FINANCIAL CORPORATION, a Delaware corporation ("Lender"), Atlantic
Express Transportation Corp., a New York corporation, Amboy Bus Co., Inc., a New
York corporation, Atlantic-Chittenango Real Property Corp., a New York
corporation, Atlantic-Conn Transit, Inc., a Connecticut corporation, Atlantic
Express Coachways, Inc., a New Jersey corporation, Atlantic-Xxxxxx, Inc., a New
York corporation, Atlantic Medford, Inc., a New York corporation, Atlantic
Paratrans, Inc., a New York corporation, Atlantic Paratrans of Kentucky, a
Kentucky corporation, Block 7932, Inc., a New York corporation, Atlantic Express
of Missouri, a Missouri corporation, Atlantic Express of Pennsylvania, a
Delaware corporation, Brookfield Transit, Inc., a New York corporation, Courtesy
Bus Co., Inc., a New York corporation, GVD Leasing, Inc., a New York
corporation, 180 Jamaica Corp., a New York corporation, X. Xxxx, Inc., a New
York corporation, Jersey Business Land Co., Inc., a New Jersey corporation,
Merit Transportation, Inc., a New York corporation, Metropolitan Escort Service,
Inc., a New York corporation, Midway Leasing, Inc., a New York corporation,
Xxxxxxx Bus Service, Inc., a New York corporation, Xxxxxxx Capital Corp., a New
York corporation, Xxxxxxx Equity Corp., a New York corporation, Staten Island
Bus, Inc., a New York corporation, Atlantic Express of L.A., Inc., a New York
corporation, Central New York Coach Sales and Service, Inc., a New York
corporation, Jersey Bus Sales, Inc., a New Jersey corporation, Atlantic
Paratrans of Colorado, Inc., a Colorado corporation, Atlantic Paratrans of
Pennsylvania, Inc., a Pennsylvania corporation, Atlantic Express of New Jersey,
a New Jersey corporation, Atlantic Paratrans of Arizona, an Arizona corporation,
Temporary Transit Service, Inc., a New York corporation, 201 West Xxxxxxx
Realty, Inc., a California corporation, Atlantic Transit, Corp., a New York
corporation, Airport Service, Inc., a Massachusetts corporation, Atlantic
Express New England, Inc., a Massachusetts corporation, Atlantic Express of
California, Inc., a California corporation, Atlantic Express of Illinois, an
Illinois corporation, Atlantic Express of South Carolina, Inc., a South Carolina
corporation, Xxxxx Bus Service, Inc., a Massachusetts corporation, Groom
Transportation, Inc., a Massachusetts corporation, Xxxxx XxXxxxx Limo Service,
Inc., a Massachusetts corporation, XxXxxxxx Transportation, Inc., a
Massachusetts corporation, Mountain Transit, Inc., a Vermont corporation, X.
Xxxxx Bus Service, Inc., a Massachusetts corporation, Xxxxxx X. XxXxxxxx & Son,
Inc., a Massachusetts corporation, T-NT Bus Service, Inc., a New York
corporation, Transcomm, Inc., a Massachusetts corporation, Winsale, Inc., a New
Jersey corporation, Wrightholm Bus Line, Inc., a Vermont corporation (each
individually, an "Existing Borrower" and any two or more collectively, "Existing
Borrowers"), and Atlantic Paratrans of NYC, Inc., a New York corporation
("Paratrans of NYC", and together with the Existing Borrowers, hereinafter
collectively referred to as "Borrowers"). Capitalized terms not defined herein
shall have the meanings given to such term in the Loan Agreement (as defined
below).
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R E C I T A L S:
WHEREAS, (i) Existing Borrowers, Atlantic Express Transportation Corp., a
New York corporation (the "Parent"), and Lender are parties to that certain Loan
and Security Agreement, dated December 22, 2000, as amended to date (the "Loan
Agreement"), pursuant to which Lender has made and may continue to make loans
and other financial accommodations to Borrowers, and (ii) each Existing Borrower
is a party to the Guarantee dated December 22, 2000 (the "Borrower Guarantee"),
to guarantee to Lender the payment and performance of each other Borrower's
obligations to Lender;
WHEREAS, Paratrans of NYC is a wholly owned subsidiary of Parent acquired
by Parent since the date of the Loan Agreement;
WHEREAS, under the Loan Agreement Parent is permitted to acquire a new
subsidiary only if such subsidiary becomes a "Borrower" under the Loan Agreement
and grants to Lender a first priority security interest in certain of its
property;
WHEREAS, Existing Borrowers have requested Lender, and Lender is willing
to agree, on the terms and conditions hereof, to amend the Loan Agreement and
the other Financing Agreements to include Paratrans of NYC as a "Borrower"
thereunder and to provide for additional borrowing availability based upon
certain eligible assets of Paratrans of NYC; and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound, the parties hereto do hereby agree as follows:
1. Additional Borrower.
Paratrans of NYC hereby joins in and becomes a party to the Loan Agreement
as a Borrower and, as a Borrower, hereby joins in and becomes a party to each
other Financing Agreement to which the Borrowers are parties (including, without
limitation, the Borrower Guarantee), and Paratrans of NYC hereby assumes and
agrees to be bound by and to perform and discharge each of the Obligations and
each other duty, covenant, agreement, liability, and obligation of the Borrowers
under the Loan Agreement and the Financing Agreements, in each case with the
same effect as if Paratrans of NYC had been named as a Borrower in and had
executed and delivered the Loan Agreement and such other Financing Agreements.
All references in any of the Financing Agreements to the terms "Borrowers",
"Debtors", us, we", "our" or any other term referring to the same shall be
deemed and each such reference is hereby amended to mean and include Paratrans
of NYC.
2. Acknowledgment. Each of the Borrowers (including, without limitation,
Paratrans of NYC) hereby acknowledges, confirms and agrees that Existing
Borrowers are indebted to Lender for Obligations as of the close of business on
January 31, 2001, in respect of the loans and other credit accommodations made
pursuant to the Financing Agreements in the
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aggregate principal amount of approximately $124,552,942, together with interest
accrued and accruing thereon, and together with costs, expenses, fees (including
attorneys' fees and legal expenses) and other charges now or hereafter owed by
Existing Borrowers to Lender, all of which are unconditionally owing by Existing
Borrowers to Lender, without offset, defense or counterclaim of any kind, nature
and description whatsoever.
3. Conditions Precedent. The agreements set forth herein shall not be
effective unless and until each of the following conditions precedent is
satisfied as determined by Lender:
(a) each of the Borrowers shall have executed and delivered to Lender this
Amendment;
(b) Lender shall have received evidence that the collateral agent for the
Senior Notes has a valid and perfected security interest in and lien on the
assets of Paratrans of NYC;
(c) Lender shall have received evidence, including, without limitation,
lien and title searches in form and substance satisfactory to Lender, that after
giving effect to the amendments affected hereby, and the consummation of the
other transactions contemplated hereby, Lender has a valid and perfected first
priority security interest in and lien on the Collateral and any other property
which is intended to be security for the Obligations;
(d) Borrowers shall have delivered to Lender copies of requisite corporate
action and proceedings in connection with this Amendment, in form and substance
satisfactory to Lender and, where requested by Lender or Lender's counsel,
certified by appropriate corporate officers or governmental authorities;
(e) Lender shall have received from Paratrans of NYC evidence of insurance
and loss payee endorsements required under the Financing Agreements, in form and
substance acceptable to Lender, and certificates of insurance policies and/or
endorsements naming Lender as loss payee;
(f) Lender shall have received, in form and substance satisfactory to
Lender, all such consents, acknowledgments, amendments and other agreements from
third parties which Lender may deem necessary or desirable in order to permit,
protect and perfect, and/or to assure the continuing full force and
effectiveness of, after giving effect to amendment and agreements contained in
this Amendment, (i) Lender's security interests in and liens on the Collateral
or any other property which is intended to be security for the Obligations, and
(ii) any consents or agreements with which Lender has been provided, or which
have been made in Lender's favor or for Lender's benefit at any time in
connection with the financing provided by Lender pursuant to the Financing
Agreements;
(g) Lender shall have received an opinion or opinions of counsel, in form
and substance and from counsel satisfactory to Lender, covering such matters
relating to this
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Amendment, the transactions contemplated hereby, and the other Financing
Agreements and such other matters as Lender shall request;
(h) each of the representations and warranties of Borrowers set forth in
the Loan Agreement and each of the other Financing Agreements is true and
correct in all material respects as of such date; and
(i) immediately prior to, and immediately after giving effect to, the
amendments and agreements set forth herein, there shall exist no Event of
Default or event or condition which, with the giving of notice or the passage of
time or both, would constitute an Event of Default.
4. Expenses. Each of the Borrowers confirms that under the Loan Agreement,
it shall pay Lender's attorneys' fees and reasonable expenses incurred in
connection with this Amendment and the transactions contemplated hereby.
5. Ratification. Each of the Borrowers hereby ratify, assume, adopt and
agree to be bound by the Financing Agreements and agree to pay all of the
Obligations arising thereunder in accordance with the terms of the Financing
Agreements. Except as expressly set forth herein, the Loan Agreement and the
other Financing Agreements are not modified hereby and each shall remain in full
force and effect in accordance with the respective provisions thereof on the
date hereof, and the Loan Agreement and the other Financing Agreements are each
in all respects ratified and affirmed. Lender's agreements herein shall not be
construed to require Lender to make any amendment to the Loan Agreement or any
other Financing Agreements, on any other occasion, regardless of the similarity
of circumstances. The amendments contained herein shall not be construed to
limit or waive any of Lender's rights and remedies under the Financing
Agreements with respect to any Event of Default occurring hereafter or any
currently existing Event of Default not expressly waived herein.
6. Representations and Warranties. Without limiting any other provision of
this Amendment, and as an inducement to Lender to enter into this Amendment, (a)
each of the Borrowers hereby: (i) represents, warrants and agrees that the Loan
Agreement, this Amendment and the other Financing Agreements to which it is a
party, after giving effect to all amendments and agreements contained herein,
constitute its valid and binding obligations, enforceable against it in
accordance with their respective terms, without defenses, offsets or
counterclaims; and (ii) represents and warrants that (A) each of the
representations and warranties of such Borrower or Guarantor set forth in the
Loan Agreement and the other Financing Agreements is true and correct in all
material respects, as of the date hereof; and (B) after giving effect to this
Amendment, there exists no Event of Default or event or condition which, with
the giving of notice or the passage of time or both, would constitute an Event
of Default, and (b) Paratrans of NYC represents, warrants and agrees that: (i)
it is a corporation duly organized and in existence and good standing under the
laws of the state of its incorporation, and is duly qualified or registered as a
foreign corporation and in good standing in all other jurisdictions where the
nature and extent of the business transacted by it or its ownership of property
makes such qualification
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or registration necessary; and (ii) the execution, delivery and performance of
this Amendment and the other Financing Agreements to which it is a party, and
all borrowings or guarantees contemplated hereby and thereby, after giving
effect to all amendments and agreements contained herein, are within its power,
have been duly authorized by all necessary corporate or other action and are not
in contravention of the terms of any of its articles of incorporation, by- laws
or other organizational documentation or any law, regulation, decree, order,
judgement, indenture, agreement or undertaking to which it is a party or by
which it or any of its property is bound.
7. Governing Law. This Amendment shall be construed in accordance with and
governed by the laws of State of New York, without giving effect to any
conflicts of laws provisions of such State that would require the application of
the laws of a different jurisdiction.
8. Headings. The headings indicated herein are inserted for convenience
only and shall not be considered a part this Amendment, nor in any way limit the
construction or interpretation of this Amendment.
9. Amendments and Waivers. Neither this Amendment nor any provision hereof
shall be amended, modified, waived or discharged orally or by course of conduct,
but only by a written agreement signed by an authorized officer of Lender.
Lender shall not, by any act, delay, omission or otherwise be deemed to have
expressly or impliedly waived any of its rights, powers and/or remedies unless
such waiver shall be in writing and signed by an authorized officer of Lender.
Any such waiver shall be enforceable only to the extent specifically set forth
therein. A waiver by Lender of any right, power and/or remedy on any one
occasion shall not be construed as a bar to or waiver of any such right, power
and/or remedy which Lender would otherwise have on any future occasion, whether
similar in kind or otherwise.
10. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Lender and each of the Borrowers have caused these
presents to be duly executed as of the day and year first above written.
LENDER BORROWERS
CONGRESS FINANCIAL CORPORATION ATLANTIC EXPRESS
TRANSPORTATION CORP.
AMBOY BUS CO., INC.
By: /s/ Xxxx Xxxx ATLANTIC-CHITTENANGO REAL
--------------------------- PROPERTY CORP.
ATLANTIC-CONN. TRANSIT, INC.
Title: Vice President ATLANTIC EXPRESS COACHWAYS,
--------------------------- INC.
ATLANTIC-XXXXXX, INC.
ATLANTIC MEDFORD INC.
Address: ATLANTIC PARATRANS, INC.
-------- ATLANTIC PARATRANS OF
1133 Avenue of the Americas KENTUCKY, INC.
Xxx Xxxx, Xxx Xxxx 00000 BLOCK 7932, INC.
ATLANTIC EXPRESS OF MISSOURI
INC.
ATLANTIC EXPRESS OF
PENNSYLVANIA, INC.
BROOKFIELD TRANSIT, INC.
COURTESY BUS CO., INC.
GVD LEASING, INC.
180 JAMAICA CORP.
X. XXXX, INC.
JERSEY BUSINESS LAND CO., INC.
MERIT TRANSPORTATION, CORP.
METRO AFFILIATES, INC.
METROPOLITAN ESCORT SERVICE,
INC.
MIDWAY LEASING, INC.
XXXXXXX BUS SERVICE, INC.
XXXXXXX CAPITAL CORP.
XXXXXXX EQUITY CORP.
STATEN ISLAND BUS, INC.
ATLANTIC EXPRESS OF L.A., INC.
CENTRAL NEW YORK COACH SALES
AND SERVICE, INC.
JERSEY BUS SALES, INC.
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ATLANTIC PARATRANS OF
COLORADO, INC.
ATLANTIC PARATRANS OF
PENNSYLVANIA, INC.
ATLANTIC EXPRESS OF
NEW JERSEY, INC.
ATLANTIC PARATRANS OF
ARIZONA, INC.
TEMPORARY TRANSIT SERVICE,
INC.
201 WEST XXXXXXX REALTY, INC.
ATLANTIC TRANSIT, CORP.
AIRPORT SERVICES, INC.
ATLANTIC EXPRESS NEW ENGLAND,
INC.
ATLANTIC EXPRESS OF
CALIFORNIA, INC.
ATLANTIC EXPRESS OF
ILLINOIS, INC.
ATLANTIC EXPRESS OF
SOUTH CAROLINA, INC.
XXXXX BUS SERVICE, INC.
GROOM TRANSPORTATION, INC.
XXXXX XXXXXXX LIMO SERVICE,
INC.
XXXXXXXX TRANSPORTATION, INC.
MOUNTAIN TRANSIT, INC.
X. XXXXX BUS SERVICE, INC.
XXXXXX X. XXXXXXXX & SON, INC.
T-NT BUS SERVICE, INC.
TRANSCOMM, INC.
WINSALE, INC.
WRIGHTHOLM BUS LINE, INC.
ATLANTIC PARATRANS OF NYC, INC.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Title: Chief Financial Officer of each
of the Companies Listed above
Chief Executive Xxxxxx
0 Xxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
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