Exhibit
10.1


 


AMENDMENT NO. 4 TO SECOND
AMENDED

AND RESTATED LOAN AND SECURITY AGREEMENT


 


Amendment No. 4, dated as of January 5, 2005, by and among Congress
Financial Corporation, in its capacity as agent (in such capacity, “Agent”)
acting for and on behalf of Lenders (as hereinafter defined), Atlantic Express
Transportation Corp. a New York corporation (“AETC”), Amboy Bus Co., Inc., a
New York corporation (“Amboy”), Atlantic Express Coachways, Inc., a New Jersey
corporation (“Coachways”), Atlantic Express of L.A., Inc. a California
corporation (“AELA”), Atlantic Express of Missouri Inc,. a Missouri corporation
(“AE Missouri”), Atlantic Express of New Jersey, Inc., a New Jersey corporation
(“AENJ”), Atlantic Express of Pennsylvania, Inc., a Delaware corporation (“AEP”),
Atlantic-Hudson, Inc. a New York corporation (“AH”), Atlantic Paratrans, Inc. a
New York corporation (“AP”), Atlantic Paratrans of NYC, Inc. a New York
corporation (“APNY”), Atlantic Queens Bus Corp. a New York corporation (“AQ”),
Block 7932, Inc. a New York corporation (“Block”), Brookfield Transit Inc., a
New York corporation (“Brookfield”), Courtesy Bus Co., Inc., a New York
corporation (“Courtesy”), G.V.D. Leasing Co., Inc. a New York corporation (“GVD”),
180 Jamaica Corp. a New York corporation (“Jamaica”), Merit Transportation
Corp. a New York corporation (“Merit”), Metro Affiliates, Inc., a New York
corporation (“Metro”), Metropolitan Escort Service, Inc. a New York corporation
(“Escort”), Midway Leasing Inc. a New York corporation (“Midway”), Staten
Island Bus, Inc. a New York corporation (“SI-Bus”), Temporary Transit Service,
Inc. a New York corporation (“TTS”), 201 West Sotello Realty, Inc. a California
corporation (“Sotello”), Wrightholm Bus Line, Inc. a Vermont corporation (“Wrightholm”),
Jersey Business Land Co., Inc., a New Jersey corporation (“JBL”), Atlantic
Transit Corp. a New York corporation (“ATC”), Airport Services, Inc. a
Massachusetts corporation (“Airport”), Atlantic Express New England, Inc. a
Massachusetts corporation (“AE-NE”), Atlantic Express of California, Inc. a
California corporation (“AE-CA”), Atlantic Express of Illinois, Inc. an
Illinois corporation (“AE-I”), Atlantic Paratrans of Arizona, Inc. an Arizona
corporation (“AP-AZ”), Fiore Bus Service, Inc. a Massachusetts corporation (“Fiore”),
Groom Transportation, Inc. a Massachusetts corporation (“Groom”), James
McCarthy Limo Service, Inc. a Massachusetts corporation (“Limo”), K. Corr, Inc.
a New York corporation (“Corr”), McIntire Transportation, Inc. a Massachusetts
corporation (“McIntire”), Mountain Transit, Inc. a Vermont corporation (“Mountain”),
Jersey Business Land Co., Inc. a New Jersey corporation (JBL”), R. Fiore Bus
Service, Inc. a Massachusetts corporation (“FBS”), Raybern Bus Service, Inc. a
New York corporation (“RBS”), Raybern Capital Corp. a New York corporation (“RBC”),
Raybern Equity Corp. a New York corporation (“REC”), Robert L. McCarthy &
Son, Inc. a Massachusetts corporation (“McCarthy”), T-NT Bus Service, Inc., a
New York corporation (“TNT”), Transcomm, Inc., a Massachusetts corporation (“Transcomm”)
and Winsale, Inc., a New Jersey corporation (“Winsale”, and together with AETC,
Coachways, Amboy, AELA, AE Missouri, AENJ, AEP, AP, APNY, AQ, Block,
Brookfield, Courtesy, GVD, Jamaica, Merit, Metro, Escort, Midway, SI-Bus, TTS,
Sotello, Wrightholm, ATC, Airport, AE-NE, AE-CA, AE-I, AP-AZ, Fiore, Groom,
Limo, Corr, McIntire, Mountain, JBL, FBS, RBS, RBC, REC, McCarthy, TNT, and
Transcomm, each individually a “Borrower” and collectively, “Borrowers”), and
Central New York Reorganization Corp. (f/k/a Central New York Coach Sales &
Service, Inc.), a New York corporation (“Central”), Jersey Bus Sales, Inc., a
New Jersey corporation (“Jersey”


 


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and together with Central, each individually a “Guarantor” and
collectively, “Guarantors”).


 


W
I  T  N  E  S  S  E  T  H
:


 


WHEREAS, Agent, Lenders, Borrowers and
Guarantors have entered into financing arrangements pursuant to which Agent and
Lenders may make loans and advances and provide other financial accommodations
to Borrowers as set forth in the Second Amended and Restated Loan and Security
Agreement, dated as of April 22, 2004, by and among Agent, Borrowers,
Guarantors and the financial institutions from time to time parties thereto as
lenders (“Lenders”), whether by execution thereof or of an Assignment and
Acceptance, as amended by Amendment No. 1 to Second Amended and Restated Loan
and Security Agreement, dated as of June 14, 2004, by and among Borrowers,
Guarantors, Agent and Lenders, as amended by Amendment No. 2 to Second Amended
and Restated Loan and Security Agreement, dated as of September 15, 2004,
by and among Borrowers, Guarantors, Agent and Lenders, as amended by Amendment
No. 3 to Second Amended and Restated Loan and Security Agreement, dated as of October 14,
2004, by and among Borrowers, Guarantors, Agent and Lenders (as amended hereby
and as the same may hereafter be further amended, modified, supplemented,
extended, renewed, restated or replaced the “Loan Agreement”, and together with
all agreements, documents and instruments at any time executed and/or delivered
in connection therewith or related thereto, as from time to time amended,
modified, supplemented, extended, renewed, restated or replaced, collectively,
the “Financing Agreements”).  All
capitalized terms used herein shall have the meanings assigned thereto in the
Loan Agreement and the other Financing Agreements, unless otherwise defined
herein;


 


WHEREAS, Borrowers have requested that Agent
and Lenders make certain amendments to the Loan Agreement and Agent and Lenders
are willing to agree to such requests, subject to the terms and conditions
contained herein; and


 


WHEREAS, by this Amendment No. 4, Agent,
Lenders, Borrowers and Guarantors wish and intend to evidence such amendments.


 


NOW, THEREFORE, in consideration of the
foregoing and the mutual agreements and covenants contained herein, the parties
hereto agree as follows:


 


1.                                       Additional
Definitions.  As used herein, the
following terms shall have the respective meanings given to them below:


 


(a)                                  “Amendment No. 4”
shall mean this Amendment No. 4 to Second Amended and Restated Loan and
Security Agreement, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced.


 


2.                                       Interpretation.  For purposes of this Amendment No. 4, unless
otherwise defined herein, all terms used herein, including, but not limited to,
those terms used and/or defined in the recitals above, shall have the
respective meanings assigned to such terms in the Loan Agreement.


 


3.                                       Administrative
Expense Reserve.


 


Section 1.5 of the Loan Agreement is
deleted and the following is substituted in


 


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place thereof:


 


“1.5  ‘Administrative
Expense Reserve’ shall mean a Reserve in the amount of $1,500,000, which shall
be in effect at all times except during such periods of time when the Special
Reserve is in effect.”.


 


4.                                       Conditions
Precedent.  The effectiveness of
Amendment No. 4 is further conditioned upon the satisfaction of the following
conditions precedent in a manner satisfactory to Agent and Lenders:


 


(a)                                  Agent shall have
received an original of this Amendment No. 4 duly authorized, executed and
delivered by the parties hereto.


 


5.                                       Additional
Representations, Warranties and Covenants.  
Borrowers represent, warrants and covenant with and to Agent and Lenders
as follows, which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof, and the truth and accuracy of,
or compliance with each, together with the representations, warranties and
covenants in the other Financing Agreements, being a continuing condition of
the making of Loans by Agent to Borrowers:


 


(i)                                     This Amendment No.
4 has been duly executed and delivered by Borrowers and is in full force and
effect as of the date hereof and the agreements and obligations of Borrowers
contained herein constitute legal, valid and binding obligations of such
Borrowers enforceable against such Borrowers in accordance with their
respective terms.


 


6.                                       Miscellaneous.


 


(a)                                  Entire Agreement;
Ratification and Confirmation of the Financing Agreements.  This Amendment No. 4 contains the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous term sheets, proposals, discussions,
negotiations, correspondence, commitments and communications between or among
the parties concerning the subject matter hereof.  This Amendment No. 4 may not be modified or
any provision waived, except in writing signed by the party against whom such
modification or waiver is sought to be enforced.  Except for those provisions specifically
modified or waived pursuant hereto, the Financing Agreements are hereby
ratified, restated and confirmed by the parties hereto as of the effective date
hereof.  To the extent of conflict
between the terms of this Amendment No. 4 and the Financing Agreements, the
terms of this Amendment No. 4 shall control.


 


7.                                       Governing Law.  This Amendment No. 4 and the rights and
obligations hereunder of each of the parties hereto shall be governed by and
interpreted and determined in accordance with the internal laws of the State of
New York, without regard to principles of conflicts of law.


 


8.                                       Binding
Effect.  This Amendment No. 4 shall
be binding upon and inure to the benefit of each of the parties hereto and
their respective successors and assigns.


 


9.                                       Counterparts.  This Amendment No. 4 may be executed in any
number of counterparts, but all of such counterparts shall together constitute
but one and the same


 


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agreement.  In making proof of
this Amendment No. 4 it shall not be necessary to produce or account for more
than one counterpart thereof signed by each of the parties hereto.


 


10.                                 Headings.  The headings listed herein are for
convenience only and do not constitute matters to be construed in interpreting
this Amendment No. 4.


 


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IN WITNESS WHEREOF, Agent, Lenders, Borrowers
and Guarantors have caused these presents to be duly executed as of the day and
year first above written.


 


	
   

  	
  BORROWERS

  
	
   

  	
   

  
	
   

  	
  Atlantic Express Transportation Corp.

  
	
   

  	
  Amboy Bus Co., Inc.

  
	
   

  	
  Atlantic Express Coachways, Inc.

  
	
   

  	
  Atlantic Express of L.A. Inc.

  
	
   

  	
  Atlantic Express of Missouri Inc.

  
	
   

  	
  Atlantic Express of New Jersey, Inc.

  
	
   

  	
  Atlantic Express of Pennsylvania, Inc.

  
	
   

  	
  Atlantic-Hudson, Inc.

  
	
   

  	
  Atlantic Paratrans, Inc.

  
	
   

  	
  Atlantic Paratrans of NYC, Inc.

  
	
   

  	
  Atlantic Queens Bus Corp.

  
	
   

  	
  Block 7932, Inc.

  
	
   

  	
  Brookfield Transit Inc.

  
	
   

  	
  Courtesy Bus Co., Inc.

  
	
   

  	
  Jersey Business Land Co., Inc.

  
	
   

  	
  G.V.D. Leasing Co., Inc.

  
	
   

  	
  180 Jamaica Corp.

  
	
   

  	
  Merit Transportation Corp.

  
	
   

  	
  Metro Affiliates, Inc.

  
	
   

  	
  Metropolitan Escort Service, Inc.

  
	
   

  	
  Midway Leasing Inc.

  
	
   

  	
  Staten Island Bus, Inc.

  
	
   

  	
  Temporary Transit Service, Inc.

  
	
   

  	
  201 West Sotello Realty, Inc.

  
	
   

  	
  Wrightholm Bus Line, Inc.

  
	
   

  	
  Atlantic Transit Corp.

  
	
   

  	
  Airport Services, Inc.

  
	
   

  	
  Atlantic Express New England, Inc.

  
	
   

  	
  Atlantic Express of California, Inc.

  
	
   

  	
  Atlantic Express of Illinois, Inc.

  
	
   

  	
  Atlantic Paratrans of Arizona, Inc.

  
	
   

  	
  Fiore Bus Service, Inc.

  
	
   

  	
  Groom Transportation, Inc.

  
	
   

  	
  James McCarty Limo Service, Inc.

  
	
   

  	
  K. Corr, Inc.

  
	
   

  	
  McIntire Transportation, Inc.

  
	
   

  	
  Mountain Transit, Inc.

  
	
   

  	
  R. Fiore Bus Service, Inc.

  
	
   

  	
  Raybern Bus Service, Inc.

  



 


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  Raybern Capital Corp.

  
	
   

  	
  Raybern Equity Corp.

  
	
   

  	
  Robert L. McCarthy & Son, Inc.

  
	
   

  	
  T-NT Bus Service, Inc.

  
	
   

  	
  Transcomm, Inc.

  
	
   

  	
  Winsale, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Neil Abitabilo

  
	
   

  	
   

  
	
   

  	
  Title:

  	
    Chief Financial Officer

  
	
   

  	
   

  
	
  GUARANTORS

  	
   

  
	
   

  	
   

  
	
  JERSEY BUS SALES, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/
  Neil Abitabilo

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
    Chief Financial Officer

  	
   

  	
   

  
	
   

  	
   

  
	
  CENTRAL NEW YORK REORGANIZATION CORP.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/
  Neil Abitabilo

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
    Chief Financial Officer

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AGENT

  	
   

  
	
   

  	
   

  
	
  CONGRESS FINANCIAL CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/
  Herb Korn

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
     Vice President

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  LENDER

  	
   

  
	
   

  	
   

  
	
  CONGRESS FINANCIAL CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   /s/
  Herb Korn

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
     Vice President