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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 27, 1997
REGISTRATION NO. 333-27267
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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GREYHOUND LINES, INC.
(AND ITS SUBSIDIARIES IDENTIFIED FOOTNOTE (1) BELOW)
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other 4131
Jurisdiction (Primary Standard 86-0572343
of Incorporation or Industrial Classification (I.R.S. Employer
Organization) Code Number) Identification No.)
MARK E. SOUTHERST, VICE PRESIDENT
AND GENERAL COUNSEL
15110 N. DALLAS PARKWAY, SUITE 600 15110 NORTH DALLAS PARKWAY, SUITE 600
DALLAS, TEXAS 75248 DALLAS, TEXAS 75248
(972) 789-7000 (972) 789-7000
(Address, Including Zip Code, and Telephone (Name, Address, Including Zip Code, and
Number, Including Area Code, of Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices) Agent for Service)
Copy to:
JEREMY W. DICKENS, ESQ.
WEIL, GOTSHAL & MANGES LLP
100 CRESCENT COURT, SUITE 1300
DALLAS, TEXAS 75201
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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(1) Atlantic Greyhound Lines of Virginia, Inc., a Virginia corporation (I.R.S.
Employer Identification Number 58-0869571), Eagle Bus Manufacturing, Inc., a
Delaware corporation (I.R.S. Employer Identification Number 74-2472717), FCA
Insurance Limited, a Bermuda corporation (I.R.S. Employer Identification
Number: None), GLI Holding Company, a Delaware corporation (I.R.S. Employer
Identification Number 75-2146309), Greyhound of Mexico, S.A. DE C.V., a
Republic of Mexico corporation (I.R.S. Employer Identification Number:
None), Grupo Centro, Inc., a Delaware corporation (I.R.S. Employer
Identification Number 75-2692522), Los Buenos Leasing Co., Inc., a New
Mexico corporation (I.R.S. Employer Identification Number 85-0434715),
Sistema Internacional De Transporte De Autobuses, Inc., a Delaware
corporation (I.R.S. Employer Identification Number 75-2548617), T&V Holding
Company, a Delaware corporation (I.R.S. Employer Identification Number
75-2238995), Texas, New Mexico & Oklahoma Coaches, Inc., a Texas corporation
(I.R.S. Employer Identification Number 75-0605295), T.N.M. & O. Tours, Inc.,
a Texas corporation (I.R.S. Employer Identification Number 75-1188694), and
Vermont Transit Co., Inc., a Vermont corporation (I.R.S. Employer
Identification Number 03-0164980), each a direct or indirect subsidiary of
the Company (collectively with the Company, the "Co-Registrants").
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THE CO-REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE CO-REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PROSPECTUS
OFFER TO EXCHANGE ALL OUTSTANDING
11 1/2% SERIES A SENIOR NOTES DUE 2007
FOR
[GREYHOUND LOGO] 11 1/2% SERIES B SENIOR NOTES DUE 2007
OF
GREYHOUND LINES, INC.
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Greyhound Lines, Inc., a Delaware Corporation (the "Company"), and the
Guarantors (as hereinafter defined) hereby offer, upon the terms and subject to
the conditions set forth in this Prospectus and the accompanying Letter of
Transmittal (which together constitute the "Exchange Offer"), to exchange $1,000
principal amount of 11 1/2% Series B Senior Notes Due 2007 of the Company (the
"New Notes"), for each $1,000 principal amount of 11 1/2% Series A Senior Notes
Due 2007 of the Company (the "Old Notes"), of which an aggregate principal
amount of $150,000,000 is outstanding. The form and terms of the New Notes are
identical to the form and terms of the Old Notes except that (i) interest on the
New Notes shall accrue from the most recent date to which interest has been paid
on the Notes (as hereinafter defined) or, if no such interest has been paid,
from the date of issuance of the Old Notes and (ii) the New Notes are being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and will not bear any legends restricting their transfer. The New Notes will
evidence the same debt as the Old Notes and will be issued pursuant to, and
entitled to the benefits of, the indenture governing the Old Notes. The Exchange
Offer is being made in order to satisfy certain contractual obligations of the
Company. See "The Exchange Offer" and "Description of Notes." The New Notes and
the Old Notes are sometimes collectively referred to herein as the "Notes."
Interest on the New Notes will be payable semi-annually on April 15 and
October 15 of each year, commencing October 15, 1997. The New Notes will mature
on April 15, 2007. The New Notes will be redeemable at the option of the
Company, in whole or in part, at any time on or after April 15, 2002 at the
redemption prices set forth herein, plus accrued and unpaid interest, if any, to
the date of redemption. Notwithstanding the foregoing, on or prior to April 15,
2000, the Company may redeem up to 35% of the aggregate principal amount of
Notes at a redemption price of 111.5% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the redemption date, with the
net cash proceeds of one or more Qualified Equity Offerings (as defined herein),
provided that at least $97.5 million aggregate principal amount of Notes remains
outstanding following each such redemption. Upon the occurrence of a Change of
Control (as defined herein), the Company will be required to make an offer to
repurchase all or any part of each holder's New Notes at a price equal to 101%
of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of repurchase. See "Description of Notes."
The New Notes will be general unsecured obligations of the Company, ranking
pari passu in right of payment with all other present or future senior
indebtedness of the Company, including borrowings under the Revolving Credit
Facility (as defined herein), and senior in right of payment to all present or
future subordinated indebtedness of the Company. The New Notes will be
effectively subordinated, however, to all secured obligations of the Company,
including the Company's borrowings under the Revolving Credit Facility, to the
extent of the assets securing such obligations. As of March 31, 1997, after
giving pro forma effect to the Offerings (as defined herein), and the use of
proceeds therefrom, the New Notes would have been effectively subordinated to
approximately $79.7 million of secured borrowings of the Company. The Indenture
(as defined herein) will permit the Company to incur additional indebtedness,
including additional secured indebtedness, subject to certain conditions. See
"Risk Factors -- Liens on Assets Under Revolving Credit Facility" and
"Description of Notes -- Certain Covenants -- Incurrence of Indebtedness and
Issuance of Preferred Stock." The New Notes will be jointly and severally
guaranteed by the Company's present and future Restricted Subsidiaries (as
defined herein).
The net proceeds from the sale of the Old Notes (the "Original Offering")
are being used, together with the net proceeds of an offering by the Company of
$60.0 million aggregate liquidation preference of its 8 1/2% Convertible
Exchangeable Preferred Stock (the "Preferred Stock"), to retire indebtedness of
the Company, to fund a pending acquisition and to acquire certain real estate.
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SEE "RISK FACTORS" BEGINNING ON PAGE 9 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED IN EVALUATING AN INVESTMENT IN THE NEW NOTES.
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The Company and the Guarantors will accept for exchange any and all Old
Notes validly tendered and not withdrawn prior to 5:00 p.m., New York City time,
on July 29, 1997, unless extended (as so extended, the "Expiration Date").
Tenders of Old Notes may be withdrawn at any time prior to the Expiration Date.
The Exchange Offer is subject to certain customary conditions. See "The Exchange
Offer."
Each broker-dealer that receives New Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of those New Notes. The Letter of Transmittal
accompanying this Prospectus (the "Letter of Transmittal") states that by so
acknowledging and by delivering a prospectus a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of New Notes received in
exchange for Old Notes where such Old Notes were acquired by such broker-dealer
as a result of market-making activities or other trading activities. The Company
has agreed, for a period of one year after the date of this Prospectus, to make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
The Old Notes were eligible for trading in the National Association of
Securities Dealers' Private Offering, Resales and Trading through Automated
Linkages ("PORTAL") Market. The Company and the Guarantors do not intend to list
the New Notes on any securities exchange or to seek approval for quotation
through any automated quotation system. The Company and the Guarantors will pay
all the expenses incident to the Exchange Offer.
The Exchange Offer is not conditioned upon any minimum principal amount of
Old Notes being tendered for exchange pursuant to the Exchange Offer.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is June 30, 1997.
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AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder, and in accordance therewith files periodic reports,
proxy and information statements, and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy and information
statements, and other information filed by the Company with the Commission may
be inspected at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of
the Commission located at 7 World Trade Center, 13th Floor, New York, New York
10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such materials may be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
The Commission also maintains a web site (http://www.sec.gov) that contains
reports, proxy and information statements regarding registrants, such as the
Company, that file electronically with the Commission. The Company's Common
Stock is listed on the American Stock Exchange and all reports, proxy and
information statements, and other information filed by the Company with the
Commission also may be inspected at the offices of the American Stock Exchange,
86 Trinity Place, New York, New York 10006.
The Company has filed with the Commission a Registration Statement on Form
S-4 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the securities offered
hereby. This Prospectus does not include all the information set forth in the
Registration Statement and the exhibits thereto, to which reference is made for
further information with respect to the Company. Copies of the Registration
Statement and the exhibits thereto are on file at the office of the Commission
and may be obtained from the Commission upon payment of prescribed rates or may
be examined without charge at the public reference facilities of the Commission
as prescribed above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated into
this Prospectus by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996, filed March 19, 1997;
(2) The Company's Current Report on Form 8-K filed March 19, 1997;
(3) The Company's Current Report on Form 8-K filed April 9, 1997;
(4) The Company's Proxy Statement for the year ended December 31,
1996, filed April 16, 1997;
(5) The Company's Current Report on Form 8-K filed April 28, 1997; and
(6) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997, filed May 13, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the Exchange Offer shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
GREYHOUND LINES, INC., 15110 N. DALLAS PARKWAY, SUITE 600, DALLAS, TEXAS 75248,
ATTENTION: INVESTOR RELATIONS, TELEPHONE: (972) 789-7577. IN ORDER TO ENSURE
TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY THE FIFTH
BUSINESS DAY PRIOR TO THE EXPIRATION DATE.
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PROSPECTUS SUMMARY
The following summary information is qualified in its entirety by, and
should be read in conjunction with, the more detailed information and financial
data, contained in this Prospectus, including information and financial data
incorporated herein by reference. The terms "Greyhound" and "Company" refer to
Greyhound Lines, Inc. and its subsidiaries (including the Guarantors), unless
otherwise stated or indicated by the context and except in the section of this
Prospectus entitled "Description of Notes."
THE COMPANY
The Company is the only nationwide provider of intercity bus transportation
services in the United States. The Company serves the value-oriented customer by
connecting rural and urban markets throughout the United States, offering
scheduled passenger service to more than 2,400 destinations with a fleet of
approximately 2,000 buses and approximately 1,600 sales locations. The Company
also provides package express service and, in many terminals, food service. The
Company's executive offices are located at 15110 N. Dallas Parkway, Suite 600,
Dallas, Texas 75248, and its telephone number is (972) 789-7000.
THE EXCHANGE OFFER
The Exchange Offer applies to $150 million aggregate principal amount of the Old
Notes. The form and terms of the New Notes are the same as the form and terms of
the Old Notes except that (i) interest on the New Notes will accrue from the
most recent date to which interest has been paid on the Notes or, if no such
interest has been paid, from the date of issuance of the Old Notes, and (ii) the
New Notes are being registered under the Securities Act and will not bear
legends restricting their transfer. The New Notes will evidence the same debt as
the Old Notes and will be issued pursuant to, and entitled to the benefits of,
the Indenture pursuant to which the Old Notes were issued. See "Description of
Notes." The Old Notes and the New Notes are sometimes referred to collectively
herein as the "Notes."
The Exchange Offer......... $1,000 principal amount of New Notes in exchange
for each $1,000 principal amount of Old Notes. As
of the date hereof, Old Notes representing $150
million aggregate principal amount are outstanding.
The terms of the New Notes and the Old Notes are
substantially identical.
Based on an interpretation by the Commission's
staff set forth in no-action letters issued to
third parties unrelated to the Company and the
Guarantors and subject to the two immediately
following sentences, the Company and the Guarantors
believe that New Notes issued pursuant to the
Exchange Offer in exchange for Old Notes generally
may be offered for resale, resold and otherwise
transferred by any person receiving the New Notes,
whether or not that person is the holder (other
than any such holder or such other person that is
an "affiliate" of the Company or any Guarantors
within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and
prospectus delivery provisions of the Securities
Act, provided that (i) the New Notes are acquired
in the ordinary course of business of that holder
or such other person, (ii) neither the holder nor
such other person is engaging in or intends to
engage in a distribution of the New Notes, and
(iii) neither the holder nor such other person has
an arrangement or understanding with any person to
participate in the distribution of the New Notes.
See "The Exchange Offer -- Purpose and Effect."
Notwithstanding the foregoing, any holder of Old
Notes who is an "affiliate" of the Company or who
intends to participate in the Exchange Offer for
the purpose of distributing the New Notes, or any
broker-dealer who purchased the Old
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Notes from the Company for resale pursuant to Rule
144A or any other available exemption under the
Securities Act, (a) will not be able to rely on the
interpretations of the staff of the Division of
Corporation Finance of the Commission set forth in
the above-mentioned interpretive letters, (b) will
not be permitted or entitled to tender such Old
Notes in the Exchange Offer and (c) must comply
with the registration and prospectus delivery
requirements of the Securities Act in connection
with any sale or other transfer of such Old Notes
unless such sale is made pursuant to an exemption
from such requirements. In addition, each
broker-dealer that receives New Notes for its own
account in exchange for Old Notes, where those Old
Notes were acquired by the broker-dealer as a
result of its market-making activities or other
trading activities, must acknowledge that it will
deliver a prospectus in connection with any resale
of the New Notes. See "Plan of Distribution."
Registration Rights
Agreement.................. The Old Notes were sold by the Company on April 16,
1997, in a private placement. In connection with
the sale, the Company entered into a Registration
Rights Agreement with the purchasers (the
"Registration Rights Agreement") providing for the
Exchange Offer. See "The Exchange Offer -- Purpose
and Effect."
Expiration Date............ The Exchange Offer will expire at 5:00 p.m., New
York City time, July 29, 1997, or such later date
and time to which it is extended.
Withdrawal................. The tender of Old Notes pursuant to the Exchange
Offer may be withdrawn at any time prior to 5:00
p.m., New York City time, on the Expiration Date.
Any Old Notes not accepted for exchange for any
reason will be returned without expense to the
tendering holder thereof as promptly as practicable
after the expiration or termination of the Exchange
Offer.
Interest on the New
Notes...................... Interest on each New Note will accrue from the most
recent date to which interest has been paid on the
Notes or, if no interest has been paid, from April
16, 1997.
Conditions to the Exchange
Offer...................... The Exchange Offer is subject to certain customary
conditions, certain of which may be waived by the
Company. See "The Exchange Offer -- Conditions to
Exchange Offer."
Procedures for Tendering
Old Notes.................. Each holder of Old Notes wishing to accept the
Exchange Offer must complete, sign and date the
Letter of Transmittal, or a copy thereof, in
accordance with the instructions contained herein
and therein, and mail or otherwise deliver the
Letter of Transmittal, or the copy, together with
the Old Notes and any other required documentation,
to the Exchange Agent at the address set forth in
the Letter of Transmittal. Persons holding Old
Notes through the Depository Trust Company ("DTC")
and wishing to accept the Exchange Offer must do so
pursuant to the DTC's Automated Tender Offer
Program, by which each tendering Participant will
agree to be bound by the Letter of Transmittal. By
executing or agreeing to be bound by the Letter of
Transmittal, each holder will represent to the
Company that, among other things, (i) the New Notes
acquired pursuant to the Exchange Offer are being
obtained in the ordinary course of business of the
person receiving such New Notes, whether or not
such person is the holder of the Old Notes,
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(ii) neither the holder nor any such other person
is engaging in or intends to engage in a
distribution of such New Notes, (iii) neither the
holder nor any such other person has an arrangement
or understanding with any person to participate in
the distribution of such New Notes, and (iv)
neither the holder nor any such other person is an
"affiliate," as defined under Rule 405 promulgated
under the Securities Act, of the Company. Pursuant
to the Registration Rights Agreement, the Company
and each of the Guarantors are required to use
their reasonable best efforts to file a "shelf"
registration statement for a continuous offering
pursuant to Rule 415 under the Securities Act in
respect of the Old Notes (and cause such shelf
registration statement to be declared effective by
the Commission and keep it continuously effective,
supplemented and amended for prescribed periods) if
(i) the Company is not required to file an Exchange
Offer Registration Statement (as defined in the
Registration Rights Agreement) or permitted to
consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or
Commission policy, or (ii) any holder of Old Notes
shall notify the Company prior to the 20th day
following consummation of the Exchange Offer (A)
that such holder is prohibited by law or Commission
policy from participating in the Exchange Offer or
(B) that such holder may not resell the New Notes
acquired by it in the Exchange Offer to the public
without delivery a prospectus and the prospectus
contained in the Exchange Offer Registration
Statement would not be appropriate or available for
such resales by such holder.
Acceptance of Old Notes and
Delivery of New Notes.... The Company will accept for exchange any and all
Old Notes which are properly tendered in the
Exchange Offer prior to 5:00 p.m., New York City
time, on the Expiration Date. The New Notes issued
pursuant to the Exchange Offer will be delivered
promptly following the Expiration Date. See "The
Exchange Offer -- Terms of the Exchange Offer."
Exchange Agent............. PNC Bank, N.A., is serving as Exchange Agent in
connection with the Exchange Offer.
Federal Income Tax
Considerations........... The exchange pursuant to the Exchange Offer should
not be a taxable event for federal income tax
purposes. See "Certain Federal Income Tax
Considerations."
Effect of Note Tendering... Old Notes that are not tendered or that are
improperly tendered and therefor not accepted will,
following the completion of the Exchange Offer,
continue to be subject to the existing restrictions
upon transfer thereof. The Company will have no
further obligation to provide for the registration
under the Securities Act of such Old Notes.
TERMS OF NEW NOTES
Securities Offered......... $150 million aggregate principal amount of 11 1/2%
Series B Senior Notes due 2007.
Maturity................... April 15, 2007.
Interest Payment Dates..... Interest on the New Notes will be payable
semi-annually in arrears on April 15 and October 15
of each year, commencing October 15, 1997.
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Ranking.................... The New Notes will be general unsecured obligations
of the Company, ranking pari passu in right of
payment with all other present or future senior
indebtedness of the Company, including borrowings
under the Revolving Credit Facility, and senior in
right of payment to all present or future
subordinated indebtedness of the Company. The New
Notes will be effectively subordinated, however, to
all secured obligations of the Company, including
the Company's borrowings under the Revolving Credit
Facility, to the extent of the assets securing such
obligations. As of March 31, 1997, after giving pro
forma effect to the Offerings and the use of
proceeds therefrom, the New Notes would have been
effectively subordinated to approximately $79.7
million of secured borrowings of the Company. The
Indenture will permit the Company to incur
additional indebtedness, including additional
secured indebtedness, subject to certain
conditions.
Guarantees................. The New Notes will be jointly and severally
guaranteed by the Company's present and future
Restricted Subsidiaries (the "Guarantors"). See
"Description of Notes -- Subsidiary Guarantees."
Optional Redemption........ The New Notes will be redeemable at the option of
the Company, in whole or in part, at any time on or
after April 15, 2002, at the redemption prices set
forth herein, plus accrued and unpaid interest, if
any, thereon to the redemption date.
Notwithstanding the foregoing, on or prior to April
15, 2000, the Company may redeem up to 35% of the
aggregate principal amount of Notes at a redemption
price of 111.5% of the principal amount thereof,
plus accrued and unpaid interest, if any, thereon
to the redemption date, with the net cash proceeds
of one or more Qualified Equity Offerings, provided
that at least $97.5 million aggregate principal
amount of Notes remains outstanding following each
such redemption. See "Description of
Notes -- Optional Redemption."
Change of Control.......... Upon the occurrence of a Change of Control, the
Company will be required to make an offer to
repurchase all or any part of each holder's New
Notes at a price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest,
if any, thereon to the date of repurchase. See
"Risk Factors -- Repurchase of Notes Upon Change of
Control" and "Description of Notes -- Repurchase at
the Option of Holders -- Change of Control."
Certain Covenants.......... The indenture pursuant to which the New Notes will
be issued (the "Indenture") contains certain
covenants that, among other things, limit the
ability of the Company and its Restricted
Subsidiaries to incur additional Indebtedness (as
defined herein), pay dividends or make other
distributions, repurchase Equity Interests (as
defined herein) or subordinated Indebtedness,
create certain liens, enter into certain
transactions with affiliates, sell assets or enter
into certain mergers or consolidations. See
"Description of Notes -- Certain Covenants."
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SELECTED CONSOLIDATED FINANCIAL INFORMATION
The statement of operations data and balance sheet data set forth below
have been derived from the audited Consolidated Financial Statements of the
Company for each of the respective periods indicated. The following financial
information should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations," "Business" and the
Consolidated Financial Statements and notes thereto set forth in the Company's
Annual Report on Form 10-K for the year ended December 31, 1996 and Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997 incorporated by
reference into this Prospectus. Certain reclassifications have been made to the
prior period statements to conform them to the December 31, 1996
classifications.
THREE MONTHS
YEARS ENDED DECEMBER 31, ENDED MARCH 31,
---------------------------------------------------- -------------------
1992 1993 1994(A) 1995 1996 1996 1997
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RATIOS) (UNAUDITED)
STATEMENT OF OPERATIONS DATA:
Operating Revenues
Transportation services
Regular route................................ $580,557 $559,883 $518,431 $560,239 $597,779 $118,743 $137,333
Package express.............................. 54,402 47,905 40,232 35,690 33,527 8,182 7,337
Food services.................................. 12,159 19,188 19,490 19,440 21,363 4,651 5,006
Other operating revenues....................... 45,863 38,578 37,158 41,752 48,189 10,067 11,472
-------- -------- -------- -------- -------- -------- --------
Total operating revenues................. 692,981 665,554 615,311 657,121 700,858 141,643 161,148
-------- -------- -------- -------- -------- -------- --------
Operating Expenses
Maintenance.................................... 97,323 77,893 73,469 68,540 73,441 18,102 18,900
Transportation................................. 138,443 133,284 133,766 156,878 170,979 37,421 42,166
Agents' commissions and station costs.......... 117,732 122,209 119,438 125,650 131,715 29,011 31,680
Marketing, advertising and traffic............. 24,452 28,431 36,445 25,513 25,811 5,187 7,035
Insurance and safety........................... 47,838 51,143 82,786 52,820 41,088 10,910 9,761
General and administration..................... 66,208 67,436 70,583 72,105 80,496 19,866 21,851
Depreciation and amortization.................. 33,499 33,154 36,046 31,010 30,683 7,542 7,542
Operating taxes and licenses................... 45,816 47,114 47,478 48,186 49,831 11,740 12,459
Operating rents(b)............................. 54,330 45,313 48,286 47,884 53,993 11,774 13,886
Cost of goods sold -- food services............ 7,766 12,617 13,465 12,597 13,774 3,096 3,204
Other operating expenses....................... 4,186 7,119 16,502 6,575 8,243 1,850 2,167
Restructuring expenses......................... -- -- 2,523 -- -- -- --
-------- -------- -------- -------- -------- -------- --------
Total operating expenses................. 637,593 625,713 680,787 647,758 680,054 156,499 170,651
-------- -------- -------- -------- -------- -------- --------
Operating Income (Loss).......................... 55,388 39,841 (65,476) 9,363 20,804 (14,856) (9,503)
Gain on Sale of Assets........................... -- (5,838) -- -- -- -- --
Interest Expense................................. 35,297 30,832 33,456 26,807 27,346 6,626 7,586
Income Tax Provision............................. 9,142 6,253 16,862 374 62 63 79
-------- -------- -------- -------- -------- -------- --------
Income (Loss) Before Extraordinary Items and
Cumulative Effect of a Change in Accounting
Principle...................................... 10,949 8,594 (115,794) (17,818) (6,604) (21,545) (17,168)
Extraordinary Items(c)........................... -- 407 (38,373) -- -- -- --
Cumulative Effect of a Change in Accounting
Principle(d)................................... -- 690 -- -- -- -- --
-------- -------- -------- -------- -------- -------- --------
Net Income (Loss)................................ $ 10,949 $ 7,497 $(77,421) $(17,818) $ (6,604) $(21,545) $(17,168)
======== ======== ======== ======== ======== ======== ========
Fully Diluted Earnings per Share of Common
Stock(e):
Income (Loss) before Extraordinary Items and
Cumulative Effect of a Change in Accounting
Principle.................................. $ 0.96 $ 0.65 $ (7.58) $ (0.33) $ (0.11) $ (0.37) $ (0.29)
Extraordinary Items.......................... -- (0.03) 2.51 -- -- -- --
Cumulative Effect of a Change in Accounting
Principle.................................. -- (0.05) -- -- -- -- --
-------- -------- -------- -------- -------- -------- --------
Net Income (Loss) per share of Common Stock.... $ 0.96 $ 0.57 $ (5.07) $ (0.33) $ (0.11) $ (0.37) $ (0.29)
======== ======== ======== ======== ======== ======== ========
OTHER DATA:
EBITDA(f)........................................ $ 88,887 $ 78,833 $(29,430) $ 40,373 $ 51,487 $ (7,314) $ (1,961)
Fully Diluted Weighted Average Shares
Outstanding(e)................................. 15,666 13,210 15,284 54,595 58,263 58,173 58,442
Ratio of Earnings to Fixed Charges(g)............ 1.4x 1.3x -- -- -- -- --
Deficiency of Earnings to Fixed Charges(g)....... -- -- $(98,932) $(17,444) $ (6,542) $(21,482) $(17,089)
Book Value Per Share of Common Stock............. 5.27 10.39 4.09 2.57 2.41 2.20 2.12
Cash Dividends Declared Per Share of Common
Stock.......................................... -- -- -- -- -- -- --
THREE MONTHS
YEARS ENDED DECEMBER 31, ENDED MARCH 31,
---------------------------------------------------- -------------------
1992 1993 1994(A) 1995 1996 1996 1997
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS) (UNAUDITED)
STATEMENT OF FINANCIAL POSITION DATA:
Total Assets..................................... $485,936 $541,293 $511,449 $480,648 $500,282 $475,757 $497,555
Long-term Debt(e)................................ 290,712 260,412 197,125 172,671 192,581 201,063 224,048
Stockholders' Equity............................. 52,262 152,166 153,196 149,762 140,881 128,242 124,026
7
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- ---------------
(a) The 1994 results reflect $61.9 million in certain operating charges,
including increases in insurance and legal reserves to recognize
pre-bankruptcy claims previously thought to have been barred in the
Company's Chapter 11 reorganization (which concluded in October 1991),
adverse claims development in 1994 and certain litigation exposure;
write-downs of real estate and other assets (including $7.0 million of
depreciation); costs associated with an operational restructuring; and a
$17.0 million increase in the income tax provision due to the reversal of a
previously recognized deferred tax benefit.
(b) Operating rents includes bus operating lease payments of $27.8 million,
$20.0 million, $22.7 million, $23.7 million, and $27.5 million for the years
ended December 31, 1992, 1993, 1994, 1995, and 1996, respectively.
(c) For the year ended December 31, 1993, the Company recorded an extraordinary
loss of $0.4 million on the write-off of debt issuance costs related to the
replacement of the Company's then existing credit agreement with a new
credit agreement. For the year ended December 31, 1994, the Company recorded
(i) an extraordinary loss of $3.6 million, of which $3.2 million related to
the write-off of debt issuance costs and $0.4 million related to
professional fees in conjunction with the replacement of the Company's
existing credit agreement with a new credit agreement, and (ii) an
extraordinary gain of $41.9 million related to the conversion of $89.0
million of its 8 1/2% Convertible Subordinated Debentures due March 31, 2007
(the "Convertible Debentures") into Common Stock.
(d) The net impact from adoption of SFAS No. 109, Accounting For Income Taxes,
was $0.7 million and is reported as a charge to earnings as the cumulative
effect of a change in accounting principle for the year ended December 31,
1993.
(e) In 1992, the Company had primary earnings per share of Common Stock of
$1.10. The completion of the Company's 1994 financial restructuring resulted
in the issuance of approximately 22.8 million shares of Common Stock in
December 1994 upon the conversion of approximately $89.0 million of
Convertible Debentures into Common Stock. In January 1995, the Company
issued an additional 16.3 million shares of Common Stock in connection with
the consummation of its Common Stock rights offering, which provided net
proceeds of approximately $28.9 million. The Company issued 4.0 million
shares of Common Stock on October 3, 1995 in a public offering, which
provided net proceeds of $15.4 million.
(f) Represents income before interest, taxes, depreciation and amortization,
extraordinary items and changes in accounting principles. EBITDA is
presented because management believes investors consider it useful in
evaluating a company's ability to service and/or incur debt. EBITDA should
not be considered in isolation from or as a substitute for net income, cash
flows from operating activities and other consolidated income or cash flow
data prepared in accordance with generally accepted accounting principles or
as a measure of profitability or liquidity.
(g) For purposes of computing the ratio of earnings to fixed charges and the
deficiency of earnings to fixed charges (i) "earnings" consist of pre-tax
earnings plus fixed charges (adjusted to exclude the amount of any
capitalized interest), and (ii) "fixed charges" consist of interest, whether
expensed or capitalized, amortization of debt issuance costs and discount
relating to any indebtedness, whether expensed or capitalized, and the
portion of rental expense estimated to be representative of an interest
factor.
8
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RISK FACTORS
Prospective purchasers of the New Notes offered hereby should carefully
review the information set forth below, in addition to the other information
contained in this Prospectus (including information incorporated by reference
herein), in evaluating an investment in the New Notes offered hereby.
SUBSTANTIAL LEVERAGE
The Company has, and will continue to have, consolidated indebtedness that
is substantial in relation to its stockholders' equity. As of March 31, 1997,
after giving pro forma effect to the offerings of the Old Notes and the
Preferred Stock completed April 16, 1997 (the "Offerings") and the application
of the net proceeds therefrom, the Company would have had outstanding
consolidated long-term indebtedness (including current portions) of
approximately $242.6 million and total stockholders' equity of approximately
$158.8 million. In addition, for the quarter ended March 31, 1997, the Company's
earnings would have been insufficient to cover fixed charges and preferred stock
dividends by $17.1 million. The degree to which the Company is leveraged could
have important consequences to holders of the New Notes, including: (i) an
impairment of the Company's ability to obtain additional financing in the
future; (ii) a reduction of funds available to the Company for its operations or
for capital expenditures as a result of the dedication of a substantial portion
of the Company's cash flow to the payment of principal of and interest on the
Company's indebtedness, including indebtedness under the New Notes; (iii) the
possibility of an event of default under financial and operating covenants
contained in the Company's debt instruments, including the Indenture, which, if
not cured or waived, could have a material adverse effect on the Company; (iv) a
relative competitive disadvantage if the Company is substantially more leveraged
than its competitors; and (v) an inability to adjust to rapidly changing market
conditions and consequent vulnerability in the event of a downturn in general
economic conditions or its business because of the Company's reduced financial
flexibility.
In addition to its debt service obligations, the Company's operations
require substantial investments on a continuing basis. The Company's ability to
make scheduled debt payments, to refinance its obligations with respect to its
indebtedness and to fund capital and non-capital expenditures necessary to
maintain the condition of the Company's operating assets, including its bus
fleet, properties and systems software, as well as to provide capacity for the
growth of its business, depends on its financial and operating performance and
obtaining additional sources of financing, which, in turn, is subject to
prevailing economic conditions and financial, business, competitive, legal and
other factors, many of which are beyond the Company's control. Moreover, the
Company is and will be subject to covenants contained in the Indenture, the
Revolving Credit Facility and other present and future indebtedness of the
Company. Such covenants include without limitation, restrictions on certain
payments, the granting of liens, the incurrence of additional indebtedness,
dividend restrictions affecting subsidiaries, assets sales, transactions with
affiliates, and mergers and consolidations. See "Description of Notes". There
can be no assurance that the Company's operating results will be sufficient for
payment of the Company's indebtedness, including indebtedness under the New
Notes, or to fund its other expenditures or that the Company will be able to
obtain financing to meet such requirements. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources" in the Company's Annual Report on Form 10-K for the year
ended December 31, 1996 and in the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997.
HISTORY OF LOSSES
The Company has had a net loss in each of its last three fiscal years.
Although the Company has implemented new strategic and operational initiatives
intended to enhance revenues and operating income, the Company's operations
generally are subject to economic, financial, competitive, legal and other
factors, many of which are beyond its control. Accordingly, there can be no
assurance that the Company will be able to implement these initiatives without
delay or that these initiatives will return the Company to profitability.
9
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LIENS ON ASSETS UNDER REVOLVING CREDIT FACILITY
The Revolving Credit Facility, which currently provides the Company with
available borrowings of up to $105.0 million, is secured by liens on
substantially all of the assets of the Company. Under certain circumstances,
certain other indebtedness of the Company may be secured by liens on assets of
the Company. In the event of a liquidation or insolvency of the Company or if
any of its secured indebtedness is accelerated, the secured assets of the
Company will be available to pay obligations on the New Notes only after the
Revolving Credit Facility and any other secured indebtedness have been paid in
full. Accordingly, there may not be sufficient assets remaining to pay amounts
due on any or all of the New Notes then outstanding. In addition, the existence
of the liens on the assets of the Company may impair the Company's ability to
obtain additional financing in the future.
REPURCHASE OF NOTES UPON CHANGE OF CONTROL
Upon the occurrence of a Change of Control, the Company will be required to
make an offer to repurchase all or any part of the New Notes at a price equal to
101% of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of repurchase. Certain events involving a Change of Control
may result in an event of default under the Revolving Credit Facility and may
result in an event of default under other indebtedness of the Company that may
be incurred in the future. An event of default under the Revolving Credit
Facility or other indebtedness could result in an acceleration of such
indebtedness, in which case the New Notes would be effectively subordinated to
the borrowings under the Revolving Credit Facility or other secured indebtedness
to the extent of any liens securing that debt. See "Description of
Notes -- Repurchase at the Option of Holders -- Change of Control." There can be
no assurance that the Company would have sufficient resources to repurchase the
New Notes and pay its obligations under the Revolving Credit Facility or other
indebtedness upon the occurrence of a Change of Control. These provisions may be
deemed to have anti-takeover effects and may delay, defer or prevent a merger,
tender offer or other takeover attempt.
COMPETITION
The transportation industry is highly competitive. The Company's primary
sources of competition for passengers are automobile travel, low cost air travel
from both regional and national airlines, and, in certain markets, regional bus
companies and trains. There can be no assurance that the Company will be able to
successfully compete against these sources of competition. See
"Business -- Competition" in the Company's Annual Report on Form 10-K, for the
year ended December 31, 1996.
SEASONALITY
The Company's business is seasonal in nature and generally follows the
pattern of the travel industry as a whole, with peaks during the summer months
and the Thanksgiving and Christmas holiday periods. As a result, the Company's
cash flows are seasonal in nature with a disproportionate amount of the
Company's annual cash flows being generated during the peak travel periods.
Therefore, an event that adversely affects ridership during any of these peak
periods in any year could have a material adverse effect on the Company's
financial condition or results of operations for such year. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Seasonality" in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996.
IMPORTANCE OF SELF-INSURANCE AUTHORITY AND AVAILABILITY OF INSURANCE
The Surface Transportation Board (the "STB") of the United States
Department of Transportation ("DOT") has granted the Company authority to
self-insure its automobile liability exposure for interstate passenger service
up to a maximum level of $5.0 million per occurrence. To maintain self-insurance
authority, the STB requires the Company to maintain a tangible net worth of
$10.0 million (as of March 31, 1997, the Company's tangible net worth was $102.0
million) and to maintain a $15.0 million trust fund (currently fully
10
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funded) to provide security for payment of claims. Subsequent to the
self-insurance grant by the STB, 38 states have granted the Company the
authority to self-insure its intrastate automobile liability exposure.
Insurance coverage and risk management expense are key components of the
Company's cost structure. The loss of self-insurance authority from the STB or a
decision by the Company's insurers to modify the Company's program
substantially, by either increasing cost, reducing availability or increasing
collateral, could have a material adverse effect on the Company's financial
condition or results of operations.
LITIGATION
The Company is a party to various lawsuits the outcome of which, if adverse
to the Company, could have a material adverse effect on the results of
operations and financial condition of the Company. See "Business -- Legal
Proceedings" in the Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
PENSION PLAN FUNDING
The Company maintains five defined benefit pension plans, the most
significant of which (the "ATU Plan") covers approximately 16,500 current and
former employees, fewer than 1,300 of which are active employees of the Company.
The ATU Plan was closed to new participants in 1983 and, as a result, over 80%
of its participants are over the age of 50. For financial reporting and
investment planning purposes, the Company currently uses an actuarial table that
closely matches the actual experience related to the existing participant
population. As a result of legislation enacted in 1994 by the United States
Congress, the Company may be required to begin measuring its funding obligation
under the ATU Plan utilizing an actuarial table prescribed by such legislation.
If so required, the Company currently estimates, based on assumed rates of
return on the ATU Plan's investments, that it would be required to begin making
contributions to the ATU Plan beginning no earlier than 1998 in an aggregate
amount over the next five years ranging from approximately $6.0 million to
approximately $30.0 million. If the ATU Plan is unable to attain such assumed
rates of return, such contributions could be higher. Although the Company is
exploring whether it may be able to obtain relief from this requirement, there
is no assurance that the Company will be able to obtain such relief, that the
ATU Plan will be able to obtain the assumed rates of return or that
contributions to the ATU Plan will not be significant.
FRAUDULENT CONVEYANCE
Under applicable provisions of the United States Bankruptcy Code or
comparable provisions of state fraudulent transfer or conveyance law, if the
Company or any Guarantor, at the time it originally issued the Old Notes or its
guarantee of the Old Notes, as the case may be, (a) incurred such obligation
with an intent to hinder, delay or defraud creditors, or (b)(i) received less
than reasonably equivalent value or fair consideration in respect thereof and
(ii)(A) was insolvent at the time of the incurrence, (B) was rendered insolvent
by reason of such incurrence (and the application of the proceeds thereof), (C)
was engaged or was about to engage in a business or transaction for which the
assets remaining with the Company or such Guarantor constituted unreasonably
small capital to carry on its business, or (D) intended to incur, or believed
that it would incur, debts beyond its ability to pay such debts as they mature,
then, in each such case, a court of competent jurisdiction could avoid, in whole
or in part, the Notes or such Guarantor's guarantee or, in the alternative,
subordinate the Notes or such Guarantor's guarantee to existing and future
indebtedness of the Company or such Guarantor, as the case may be. The measure
of insolvency for purposes of the foregoing will vary depending upon the law
applied in such case. Generally, however, the Company or a Guarantor would be
considered insolvent if the sum of its debts, including contingent liabilities,
was greater than all of its assets at fair valuation or if the present fair
saleable value of its assets was less than the amount that would be required to
pay the probable liability on its existing debts, including contingent
liabilities, as they become absolute and matured.
Management believes that, for purposes of the United States Bankruptcy Code
and state fraudulent transfer or conveyance laws, the Old Notes and the
guarantees thereof were issued without the intent to hinder, delay or defraud
creditors and for proper purposes and in good faith, that the Company and the
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13
Guarantors received reasonably equivalent value or fair consideration in respect
thereof and that the Company and the Guarantors, after the initial issuance of
the Old Notes and the guarantees thereof and the application of the proceeds
therefrom, were solvent, had sufficient capital for carrying on their business
and were (and are) able to pay their debts as they mature. There can be no
assurance, however, that a court passing on such questions would agree with
management's view.
LACK OF PUBLIC MARKET
The Company and the Guarantors do not intend to list the New Notes on any
securities exchange. The Company has been advised by Bear, Stearns & Co. Inc.
that Bear, Stearns & Co. Inc. intends to make a market in the New Notes after
the consummation of the Exchange Offer, as permitted by applicable laws and
regulations; however, Bear, Stearns & Co. Inc. is not obligated to do so, and
any such market making activities may be discontinued at any time without
notice. Therefore, there can be no assurance that an active market for the New
Notes will develop.
CONSEQUENCES OF FAILURE TO EXCHANGE
Holders of Old Notes who do not exchange their Old Notes for New Notes
pursuant to the Exchange Offer will continue to be subject to the restrictions
on transfer of Old Notes set forth in the legend thereon as a consequence of the
issuance of the Old Notes pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. In general, the
Old Notes may not be offered or sold, unless registered under the Securities
Act, except pursuant to an exemption from, or in a transaction not subject to,
the Securities Act and applicable state securities laws. The Issuer does not
anticipate registering the Old Notes under the Securities Act. Holders of the
Old Notes who do not tender their Old Notes in the Exchange Offer will continue
to hold such Old Notes and their rights under such Old Notes will not be
altered, except for any such rights under the Registration Rights Agreement,
which by their terms generally terminate or cease to have further effectiveness
as a result of the making of, and the acceptance for exchange of all validly
tendered Old Notes pursuant to, the Exchange Offer.
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CAPITALIZATION
The following table sets forth the capitalization of the Company at March
31, 1997 (i) on an actual basis and (ii) as adjusted to give effect to the
Offerings and the application of the net proceeds therefrom. The information
presented below should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the Consolidated
Financial Statements and notes thereto appearing in the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1997.
MARCH 31, 1997
-----------------------
ACTUAL AS ADJUSTED
-------- -----------
(IN THOUSANDS)
Long-term debt:
Revolving bank loans(1)............... $ 42,490 $ 37,500
10% Senior Notes due 2001 (net of
discount).......................... 139,526 --
11 1/2% Senior Notes due 2007......... -- 150,000
Other long-term debt, including
capital leases obligations......... 53,871 55,078
-------- --------
Total long-term debt.......... 235,887 242,578
Less current maturities............... (11,839) (9,199)
-------- --------
Long-term debt, net................... 224,048 233,379
-------- --------
Stockholders' equity:
Preferred stock -- 10,000,000 shares
authorized; par value $.01 per
share; no shares issued, actual,
and 2,400,000 shares of 8 1/2%
Convertible Exchangeable Preferred
Stock issued, as adjusted ($60.0
million liquidation preference).... -- 57,750
Common stock -- 100,000,000 shares
authorized; par value $.01 per
share; 58,469,469 shares
issued(2).......................... 588 588
Capital in excess of par value........ 229,414 229,414
Retained deficit...................... (98,405) (122,768)(3)
Less: Unfunded accumulated pension
obligation......................... (6,533) (6,533)
Less: Treasury stock, at cost (109,192
shares)............................ (1,038) (1,038)
-------- --------
Total stockholders' equity.... 124,026 157,413
-------- --------
Total capitalization.......... $348,074 $390,792
======== ========
- ---------------
(1) The Revolving Credit Facility currently provides for $105.0 million of
availability, subject to satisfaction of certain borrowing base and other
collateralization requirements. As of March 31, 1997, the Company had $19.2
million in issued and undrawn standby letters of credit outstanding and
total unused availability of $16.4 million under the Revolving Credit
Facility.
(2) Does not include an additional 5,944,937 shares of Common Stock reserved for
issuance pursuant to options outstanding at March 31, 1997 under the
Company's stock option plans, 792,242 shares reserved for issuance upon
conversion of the Company's Convertible Debentures, and up to 12,307,692
shares reserved for issuance upon conversion of the Preferred Stock.
(3) Reflects an extraordinary loss on the redemption of the 10% Senior Notes and
the retirement of certain interest rate swap agreements as follows:
Acceleration of discount related to the 10% Senior Notes.... $13,143
Redemption premium for the 10% Senior Notes................. 7,634
Termination of interest rate swap agreements................ 2,620
Interest paid on 11 1/2% Senior Notes between receipt of
funds and redemption of 10% Senior Notes.................. 898
Write-off of debt issuance costs............................ 67
-------
$24,362
=======
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THE EXCHANGE OFFER
PURPOSE AND EFFECT
The Old Notes were sold by the Company on April 16, 1997, in the Original
Offering. In connection with that sale, the Company entered into the
Registration Rights Agreement, which requires that the Company file the
Registration Statement under the Securities Act with respect to the New Notes
and, upon the effectiveness of the Registration Statement, offer to the holders
of the Old Notes the opportunity to exchange their Old Notes for a like
principal amount of New Notes, which will be issued without a restrictive legend
and which generally may be reoffered and resold by the holder without
registration under the Securities Act. The Registration Rights Agreement further
provides that the Company and the Guarantors must use their reasonable best
efforts to (i) cause the Registration Statement with respect to the Exchange
Offer to be declared effective on or before August 14, 1997 and (ii) consummate
the Exchange Offer on or before the 30th business day following the date the
Registration Statement is declared effective. Except as provided below, upon the
completion of the Exchange Offer, the Company's obligations with respect to the
registration of the Old Notes and the New Notes will terminate. A copy of the
Registration Rights Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part and the summary herein of certain
provisions thereof does not purport to be complete and is subject to, and is
qualified in its entirety by reference thereto. As a result of the filing and
the effectiveness of the Registration Statement, certain liquidated damages
provided for in the Registration Rights Agreement will not become payable by the
Company. Following the completion of the Exchange Offer (except as set forth in
the paragraph immediately below), holders of Old Notes not tendered will not
have any further registration rights and those Old Notes will continue to be
subject to certain restrictions on transfer. Accordingly, the liquidity of the
market for the Old Notes could be adversely affected upon completion of the
Exchange Offer.
In order to participate in the Exchange Offer, a holder must represent to
the Company, among other things, that (i) the New Notes acquired pursuant to the
Exchange Offer are being obtained in the ordinary course of business of the
person receiving the New Notes, (ii) neither the holder nor any such other
person is engaging in or intends to engage in a distribution of the New Notes,
(iii) neither the holder nor any such other person has an arrangement or
understanding with any person to participate in the distribution of the New
Notes and (iv) neither the holder nor any such other person is an "affiliate,"
as defined under Rule 405 promulgated under the Securities Act, of the Company.
Pursuant to the Registration Rights Agreement, the Company is required to file a
"shelf" registration statement for a continuous offering pursuant to Rule 415
under the Securities Act in respect of the Old Notes (and cause such shelf
registration statement to be declared effective by the Commission and keep it
continuously effective, supplemented and amended for prescribed periods) if (i)
the Company is not required to file an Exchange Offer Registration Statement or
permitted to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy, or (ii) any holder of Old
Notes shall notify the Company prior to the 20th day following consummation of
the Exchange Offer (A) that such holder is prohibited by law or Commission
policy from participating in the Exchange Offer or (B) that such holder may not
resell the New Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the Exchange Offer
Registration Statement would not be appropriate or available for such resale by
such holder. Other than as set forth in this paragraph, no holder will have the
right to participate in the "shelf" registration statement nor otherwise to
require that the Company register such holder's shares of Old Notes under the
Securities Act. See "-- Procedures for Tendering."
Based on an interpretation by the Commission's staff set forth in no-action
letters issued to third parties unrelated to the Company and the Guarantors and
subject to the two immediately following sentences, the Company and the
Guarantors believe that New Notes issued pursuant to the Exchange Offer in
exchange for Old Notes may be offered for resale, resold and otherwise
transferred by any person receiving the New Notes, whether or not that person is
the holder (other than any such holder or such other person that is an
"affiliate" of the Company or any Guarantors within the meaning of Rule 405
under the Securities Act), without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that (i) the New
Notes are acquired in the ordinary course of business of that holder or such
other person, (ii) neither the
14
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holder nor such other person is engaging in or intends to engage in a
distribution of the New Notes, and (iii) neither the holder nor such other
person has an arrangement or understanding with any person to participate in the
distribution of the New Notes. Notwithstanding the foregoing, any holder of Old
Notes who is an "affiliate" of the Company or who intends to participate in the
Exchange Offer for the purpose of distributing the New Notes, or any
broker-dealer who purchased the Old Notes from the Company for resale pursuant
to Rule 144A or any other available exemption under the Securities Act, (a) will
not be able to rely on the interpretations of the staff of the Division of
Corporation Finance of the Commission set forth in the above-mentioned
interpretive letters, (b) will not be permitted or entitled to tender such Old
Notes in the Exchange Offer and (c) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
sale or other transfer of such Old Notes unless such sale is made pursuant to an
exemption from such requirements. In addition, each broker-dealer that receives
New Notes for its own account in exchange for Old Notes, where those Old Notes
were acquired by the broker-dealer as a result of its market-making activities
or other trading activities, must acknowledge that it will deliver a prospectus
in connection with any resale of these New Notes. See "Plan of Distribution."
CONSEQUENCES OF FAILURE TO EXCHANGE
Following the completion of the Exchange Offer (except as set forth in the
second paragraph under "-- Purpose and Effect" above), holders of Old Notes not
tendered will not have any further registration rights and those Old Notes will
continue to be subject to certain restrictions on transfer. Accordingly, the
liquidity of the market for a holder's Old Notes could be adversely affected
upon completion of the Exchange Offer if the holder does not participate in the
Exchange Offer.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept any and all Old Notes
validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on
the Expiration Date. The Company will issue $1,000 principal amount of New Notes
in exchange for each $1,000 principal amount of outstanding Old Notes accepted
in the Exchange Offer. Holders may tender some or all of their Old Notes
pursuant to the Exchange Offer. However, Old Notes may be tendered only in
integral multiples of $1,000 in principal amount.
The form and terms of the New Notes are substantially the same as the form
and terms of the Old Notes except that the New Notes have been registered under
the Securities Act and will not bear legends restricting their transfer. The New
Notes will evidence the same debt as the Old Notes and will be issued pursuant
to, and entitled to the benefits of, the Indenture pursuant to which the Old
Notes were issued.
As of June 18, 1997, Old Notes representing $150,000,000 aggregate
principal amount were outstanding and there was one registered holder, a nominee
of DTC. This Prospectus, together with the Letter of Transmittal, is being sent
to such registered Holder and to others believed to have beneficial interests in
the Old Notes. Holders of Old Notes do not have any appraisal or dissenters'
rights under the General Corporation Law of the State of Delaware or the
Indenture in connection with the Exchange Offer. The Company intends to conduct
the Exchange Offer in accordance with the applicable requirements of the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder.
The Company shall be deemed to have accepted validly tendered Old Notes
when, as, and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering holders
for the purpose of receiving the New Notes from the Company. If any tendered Old
Notes are not accepted for exchange because of an invalid tender, the occurrence
of certain other events set forth herein or otherwise, certificates for any such
unaccepted Old Notes will be returned, without expense, to the tendering holder
thereof as promptly as practicable after the Expiration Date.
Holders who tender Old Notes in the Exchange Offer will not be required to
pay brokerage commissions or fees or, subject to the instructions in the Letter
of Transmittal, transfer taxes with respect to the exchange of Old Notes
pursuant to the Exchange Offer. The Company will pay all charges and expenses,
other than
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certain applicable taxes, in connection with the Exchange Offer. See "The
Exchange Offer -- Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
July 29, 1997, unless the Company, in its sole discretion, extends the Exchange
Offer, in which case the term "Expiration Date" shall mean the latest date and
time to which the Exchange Offer is extended. In order to extend the Exchange
Offer, the Company will notify the Exchange Agent and each registered holder of
any extension by oral or written notice prior to 9:00 a.m., New York City time,
on the next business day after the previously scheduled Expiration Date. The
Company reserves the right, in its sole discretion, (i) to delay accepting any
Old Notes, to extend the Exchange Offer or, if any of the conditions set forth
under "The Exchange Offer -- Certain Conditions to Exchange Offer" shall not
have been satisfied, to terminate the Exchange Offer, by giving oral or written
notice of such delay, extension or termination to the Exchange Agent, or (ii) to
amend the terms of the Exchange Offer in any manner.
PROCEDURES FOR TENDERING
Only a holder of Old Notes may tender the Old Notes in the Exchange Offer.
Except as set forth under "The Exchange Offer -- Book Entry Transfer," to tender
in the Exchange Offer a holder must complete, sign, and date the Letter of
Transmittal, or a copy thereof, have the signatures thereon guaranteed if
required by the Letter of Transmittal, and deliver the Letter of Transmittal or
copy to the Exchange Agent prior to the Expiration Date. In addition, either (i)
certificates for such Old Notes must be received by the Exchange Agent along
with the Letter of Transmittal, (ii) a timely confirmation of a book-entry
transfer (a "Book-Entry Confirmation") of such Old Notes, if that procedure is
available, into the Exchange Agent's account at DTC (the "Book-Entry Transfer
Facility") pursuant to the procedure for book-entry transfer described below,
must be received by the Exchange Agent prior to the Expiration Date, or (iii)
the holder must comply with the guaranteed delivery procedures described below.
To be tendered effectively, the Letter of Transmittal and other required
documents must be received by the Exchange Agent at the address set forth under
"The Exchange Offer -- Exchange Agent" prior to the Expiration Date.
The tender by a holder that is not withdrawn before the Expiration Date
will constitute an agreement between that holder and the Company in accordance
with the terms and subject to the conditions set forth herein and in the Letter
of Transmittal.
THE METHOD OF DELIVERY OF OLD NOTES AND THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF
THE HOLDER. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE AN
OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO
LETTER OF TRANSMITTAL OR OLD NOTES SHOULD BE SENT TO THE COMPANY. HOLDERS MAY
REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES, OR
NOMINEES TO EFFECT THESE TRANSACTIONS FOR SUCH HOLDERS.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company, or other nominee and who wishes
to tender should contact the registered holder promptly and instruct the
registered holder to tender on the beneficial owner's behalf. If the beneficial
owner wishes to tender on the owner's own behalf, the owner must, prior to
completing and executing the Letter of Transmittal and delivering the owner's
Old Notes, either make appropriate arrangements to register ownership of the Old
Notes in the beneficial owner's name or obtain a properly completed bond power
from the registered holder. The transfer of registered ownership may take
considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution (as defined below)
unless Old Notes tendered pursuant thereto are tendered (i) by a registered
holder who has not completed the box entitled "Special Registration Instruction"
or "Special
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Delivery Instructions" on the Letter of Transmittal or (ii) for the account of
an Eligible Institution. If signatures on a Letter of Transmittal or a notice of
withdrawal, as the case may be, are required to be guaranteed, the guarantee
must be by any eligible guarantor institution that is a member of or participant
in the Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Program, the Stock Exchange Medallion Program, or an
"eligible guarantor institution" within the meaning of Rule 17Ad-15 under the
Exchange Act (an "Eligible Institution").
If the Letter of Transmittal is signed by a person other than the
registered holder of any Old Notes listed therein, the Old Notes must be
endorsed or accompanied by a properly completed bond power, signed by the
registered holder as that registered holder's name appears on the Old Notes.
If the Letter of Transmittal or any Old Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and evidence satisfactory to the
Company of their authority to so act must be submitted with the Letter of
Transmittal unless waived by the Company.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, and withdrawal of tendered Old Notes will be determined by
the Company in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any and all Old Notes
not properly tendered or any Old Notes the Company's acceptance of which would,
in the opinion of counsel for the Company, be unlawful. The Company also
reserves the right to waive any defects, irregularities, or conditions of tender
as to particular Old Notes. The Company's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in the Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of Old Notes must be cured
within such time as the Company shall determine. Although the Company intends to
notify holders of defects or irregularities with respect to tenders of Old
Notes, neither the Company, the Exchange Agent, nor any other person shall incur
any liability for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such defects or irregularities have been
cured or waived. Any Old Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned by the Exchange Agent to the tendering holders,
unless otherwise provided in the Letter of Transmittal, as soon as practicable
following the Expiration Date.
In addition, the Company reserves the right in its sole discretion to
purchase or make offers for any Old Notes that remain outstanding after the
Expiration Date or, as set forth under "-- Conditions to the Exchange Offer," to
terminate the Exchange Offer and, to the extent permitted by applicable law,
purchase Old Notes in the open market, in privately negotiated transactions, or
otherwise. The terms of any such purchases or offers could differ from the terms
of the Exchange Offer.
By tendering, each holder will represent to the Company that, among other
things, (i) the New Notes acquired pursuant to the Exchange Offer are being
obtained in the ordinary course of business of the person receiving such New
Notes, whether or not such person is the registered holder, (ii) neither the
holder nor any such other person is engaging in or intends to engage in a
distribution of such New Notes, (iii) neither the holder nor any such other
person has an arrangement or understanding with any person to participate in the
distribution of such New Notes, and (iv) neither the holder nor any such other
person is an "affiliate," as defined under Rule 405 of the Securities Act, of
the Company.
In all cases, issuance of New Notes for Old Notes that are accepted for
exchange pursuant to the Exchange Offer will be made only after timely receipt
by the Exchange Agent of certificates for such Old Notes or a timely Book-Entry
Confirmation of such Old Notes into the Exchange Agent's account at the
Book-Entry Transfer Facility, a properly completed and duly executed Letter of
Transmittal (or, with respect to the DTC and its participants, electronic
instructions in which the tendering holder acknowledges its receipt of and
agreement to be bound by the Letter of Transmittal), and all other required
documents. If any tendered Old Notes are not accepted for any reason set forth
in the terms and conditions of the Exchange Offer or if Old Notes are submitted
for a greater principal amount than the holder desires to exchange, such
unaccepted or non-exchanged Old Notes will be returned without expense to the
tendering Holder thereof (or, in the case
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of Old Notes tendered by book-entry transfer into the Exchange Agent's account
at the Book-Entry Transfer Facility pursuant to the book-entry transfer
procedures described below, such nonexchanged Old Notes will be credited to an
account maintained with such Book-Entry Transfer Facility) as promptly as
practicable after the expiration or termination of the Exchange Offer.
Each broker-dealer that receives New Notes for its own account in exchange
for Old Notes, where the Old Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such New
Notes. See "Plan of Distribution."
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with respect
to the Old Notes at the Book-Entry Transfer Facility for purposes of the
Exchange Offer within two business days after the date of this Prospectus, and
any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of Old Notes being tendered by
causing the Book-Entry Transfer Facility to transfer such Old Notes into the
Exchange Agent's account at the Book-Entry Transfer Facility in accordance with
such Book-Entry Transfer Facility's procedures for transfer. However, although
delivery of Old Notes may be effected through book-entry transfer at the
Book-Entry Transfer Facility, the Letter of Transmittal or copy thereof, with
any required signature guarantees and any other required documents, must, in any
case other than as set forth in the following paragraph, be transmitted to and
received by the Exchange Agent at the address set forth under "The Exchange
Offer -- Exchange Agent" on or prior to the Expiration Date or the guaranteed
delivery procedures described below must be complied with.
DTC's Automated Tender Offer Program ("ATOP") is the only method of
processing exchange offers through DTC. To accept the Exchange Offer through
ATOP, participants in DTC must send electronic instructions to DTC through DTC's
communication system in lieu of sending a signed, hard copy Letter of
Transmittal. DTC is obligated to communicate those electronic instructions to
the Exchange Agent. To tender Old Notes through ATOP, the electronic
instructions sent to DTC and transmitted by DTC to the Exchange Agent must
contain the character by which the participant acknowledges its receipt of and
agrees to be bound by the Letter of Transmittal.
GUARANTEED DELIVERY PROCEDURES
If a registered holder of the Old Notes desires to tender such Old Notes
and the Old Notes are not immediately available, or time will not permit such
holder's Old Notes or other required documents to reach the Exchange Agent
before the Expiration Date, or the procedure for book-entry transfer cannot be
completed on a timely basis, a tender may be effected if (i) the tender is made
through an Eligible Institution, (ii) prior to the Expiration Date, the Exchange
Agent received from such Eligible Institution a properly completed and duly
executed Letter of Transmittal (or a facsimile thereof) and Notice of Guaranteed
Delivery, substantially in the form provided by the Company (by telegram, telex,
facsimile transmission, mail or hand delivery), setting forth the name and
address of the holder of Old Notes and the amount of Old Notes tendered, stating
that the tender is being made thereby and guaranteeing that within three New
York Stock Exchange ("NYSE") trading days after the date of execution of the
Notice of Guaranteed Delivery, the certificates for all physically tendered Old
Notes, in proper form for transfer, or a Book-Entry Confirmation, as the case
may be, and any other documents required by the Letter of Transmittal will be
deposited by the Eligible Institution with the Exchange Agent, and (iii) the
certificates for all physically tendered Old Notes, in proper form for transfer,
or a Book-Entry Confirmation, as the case may be, and all other documents
required by the Letter of Transmittal, are received by the Exchange Agent within
three NYSE trading days after the date of execution of the Notice of Guaranteed
Delivery.
WITHDRAWAL RIGHTS
Tenders of Old Notes may be withdrawn at any time prior to 5:00 pm., New
York City time, on the Expiration Date.
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For a withdrawal of a tender of Old Notes to be effective, a written or,
for DTC participants, electronic ATOP transmission notice of withdrawal must be
received by the Exchange Agent at its address set forth on the back cover page
of this Prospectus prior to 5:00 pm., New York City time, on the Expiration
Date. Any such notice of withdrawal must (i) specify the name of the person
having deposited the Old Notes to be withdrawn (the "Depositor"), (ii) identify
the Old Notes to be withdrawn (including the certificate number or numbers and
principal amount of such Old Notes), (iii) be signed by the holder in the same
manner as the original signature on the Letter of Transmittal by which such Old
Notes were tendered (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Trustee register the
transfer of such Old Notes into the name of the person withdrawing the tender,
and (iv) specify the name in which any such Old Notes are to be registered, if
different from that of the Depositor. All questions as to the validity, form,
and eligibility (including time of receipt) of such notices will be determined
by the Company, whose determination shall be final and binding on all parties.
Any Old Notes so withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the Exchange Offer. Any Old Notes which have been
tendered for exchange but which are not exchanged for any reason will be
returned to the holder thereof without cost to such holder as soon as
practicable after withdrawal, rejection of tender, or termination of the
Exchange Offer. Properly withdrawn Old Notes may be retendered by following one
of the procedures under "The Exchange Offer -- Procedures for Tendering" at any
time on or prior to the Expiration Date.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provision of the Exchange Offer, the Company
shall not be required to accept for exchange, or to issue New Notes in exchange
for, any Old Notes and may terminate or amend the Exchange Offer if at any time
before the acceptance of such Old Notes for exchange or the exchange of the New
Notes for such Old Notes, the Company determines that the Exchange Offer
violates applicable law, any applicable interpretation of the staff of the
Commission or any order of any governmental agency or court of competent
jurisdiction.
The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company regardless of the circumstances giving rise to any such
condition or may be waived by the Company in whole or in part at any time and
from time to time in its sole discretion. The failure by the Company at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such
right and each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.
In addition, the Company will not accept for exchange any Old Notes
tendered, and no New Notes will be issued in exchange for any such Old Notes, if
at such time any stop order shall be threatened or in effect with respect to the
Registration Statement of which this Prospectus constitutes a part or the
qualification of the Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). In any such event the Company is required to use
every reasonable effort to obtain the withdrawal of any stop order at the
earliest possible time.
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EXCHANGE AGENT
All executed Letters of Transmittal should be directed to the Exchange
Agent. PNC Bank, National Association has been appointed as Exchange Agent for
the Exchange Offer. Questions, requests for assistance and requests for
additional copies of this Prospectus or of the Letter of Transmittal should be
directed to the Exchange Agent addressed as follows:
For Information by Telephone:
(215) 585-6938
By Registered or Certified Mail: By Hand or Overnight Delivery Service:
PNC Bank, National Association PNC Bank, National Association
Corporate Trust Dept. Corporate Trust Dept.
1600 Market St., 30th FLR 1600 Market St., 30th FLR
Philadelphia, PA 19103 Philadelphia, PA 19103
By Facsimile Transmission (for Eligible Institutions only):
Fax (215) 585-8872
(Facsimile Confirmation)
(215) 585-6938
(Originals of all documents sent by facsimile should be sent promptly by
registered or certified mail, by hand, or by overnight delivery service.)
FEES AND EXPENSES
The Company will not make any payments to brokers, dealers, or others
soliciting acceptances of the Exchange Offer. The principal solicitation is
being made by mail; however, additional solicitations may be made in person or
by telephone by officers and employees of the Company.
The estimated cash expenses to be incurred in connection with the Exchange
Offer will be paid by the Company and are estimated in the aggregate to be
$65,000, which includes fees and expenses of the Exchange Agent, accounting,
legal, printing, and related fees and expenses.
TRANSFER TAXES
Holders who tender their Old Notes for exchange will not be obligated to
pay any transfer taxes in connection therewith, except that holders who instruct
the Company to register New Notes in the name of, or request that Old Notes not
tendered or not accepted in the Exchange Offer be returned to, a person other
than the registered tendering holder will be responsible for the payment of any
applicable transfer tax thereon.
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DESCRIPTION OF NOTES
GENERAL
The New Notes will be issued pursuant to the Indenture between the Company
and PNC Bank, National Association, as trustee (the "Trustee"). The terms of the
New Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act. The New Notes are subject to
all such terms, and prospective investors are referred to the Indenture and the
Trust Indenture Act for a statement thereof. The following summary of certain
provisions of the Indenture does not purport to be complete. Copies of the
Indenture are available as set forth under "-- Available Information." The
definitions of certain terms used in the following summary are set forth below
under "-- Certain Definitions."
The New Notes will be general unsecured obligations of the Company, ranking
pari passu in right of payment with all other present or future senior
borrowings of the Company, including borrowings under the Revolving Credit
Facility, and senior in right of payment to any subordinated indebtedness, if
any, incurred by the Company in the future. The New Notes will be effectively
subordinated, however, to all secured obligations of the Company to the extent
of the assets securing such obligations, including the Company's borrowings
under the Revolving Credit Facility. As of March 31, 1997, after giving pro
forma effect to the Offerings and the use of proceeds therefrom, the New Notes
would have been effectively subordinated to approximately $79.7 million of
secured borrowings of the Company. The Indenture will permit the Company to
incur additional indebtedness, including additional secured indebtedness, under
certain circumstances. See "Risk Factors -- Liens on Assets under Revolving
Credit Facility" and "-- Certain Covenants -- Incurrence of Indebtedness and
Issuance of Preferred Stock."
As of the date of the Indenture, all of the Company's Subsidiaries were
Restricted Subsidiaries, other than the Existing Unrestricted Subsidiaries.
Under certain circumstances, the Company will be able to designate additional
current or future Subsidiaries as Unrestricted Subsidiaries. Unrestricted
Subsidiaries will not be subject to many of the restrictive covenants set forth
in the Indenture.
PRINCIPAL, MATURITY AND INTEREST
The Notes will be limited in aggregate principal amount to $150.0 million
and will mature on April 15, 2007. Interest on the Notes will accrue at the rate
of 11 1/2% per annum and will be payable semi-annually in arrears on April 15
and October 15 of each year, commencing on October 15, 1997, to holders of
record on the immediately preceding April 1 and October 1. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from April 16, 1997. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months. Principal of and
premium and interest, if any, on the Notes will be payable at the office or
agency of the Company maintained for such purpose or, at the option of the
Company, payment may be made by check mailed to holders of the Notes at their
respective addresses set forth in the register of holders; provided that all
payments with respect to Notes the holders of which have given wire transfer
instructions to the Company will be required to be made by wire transfer of
immediately available funds to the accounts specified by the holders thereof.
Until otherwise designated by the Company, the Company's office or agency will
be the office of the Trustee maintained for such purpose. The Notes will be
issued in denominations of $1,000 and integral multiples thereof.
SUBSIDIARY GUARANTEES
The Company's payment obligations under the Notes will be jointly and
severally guaranteed (the "Subsidiary Guarantees") by all of the Company's
present and future Restricted Subsidiaries (the "Guarantors"). The obligations
of each Guarantor under its Subsidiary Guarantee will be a general unsecured
obligation of such Guarantor, ranking pari passu in right of payment with all
other present or future senior borrowings of such Guarantor and senior in right
of payment to any subordinated indebtedness, if any, incurred by such Guarantor
in the future.
The Indenture will provide that, in the event of a sale or other
disposition (including by way of merger or consolidation) of all of the capital
stock of any Guarantor, then such Guarantor will be released and relieved
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of any obligations under its Subsidiary Guarantee; provided that the Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of the Indenture. See "-- Repurchase at Option of
Holders -- Asset Sales." In addition, the Indenture will provide that, in the
event the Board of Directors designates a Guarantor to be an Unrestricted
Subsidiary, then such Guarantor will be released and relieved of any obligations
under its Subsidiary Guarantee; provided that such designation is conducted in
accordance with the applicable provisions of the Indenture.
OPTIONAL REDEMPTION
The Notes will not be redeemable at the Company's option prior to April 15,
2002. Thereafter, the Notes will be subject to redemption at any time at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest, if any, thereon to
the applicable redemption date, if redeemed during the twelve-month period
beginning on April 15 of the years indicated below:
YEAR PERCENTAGE
- --------------------------------------------------- ----------
2002............................................... 105.750%
2003............................................... 103.834
2004............................................... 101.917
2005 and thereafter................................ 100.000
Notwithstanding the foregoing, on or after April 15, 2000, the Company may
redeem up to 35% of the aggregate principal amount of Notes originally issued at
a redemption price of 111.5% of the principal amount thereof, plus accrued and
unpaid interest, if any, thereon to the redemption date, with the net cash
proceeds of one or more Qualified Equity Offerings; provided that (a) at least
$97.5 million in aggregate principal amount of Notes remains outstanding
immediately after the occurrence of each such redemption and (b) each such
redemption shall occur within 90 days of the date of the closing of each such
offering.
SELECTION AND NOTICE
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate; provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each holder of Notes to be redeemed at its registered
address. Notices of redemption may not be conditional. If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall
state the portion of the principal amount thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the holder thereof upon cancellation of the original Note. Notes called
for redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on Notes or portions of them called
for redemption.
MANDATORY REDEMPTION
Except as set forth below under "-- Repurchase at the Option of Holders,"
the Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
REPURCHASE AT THE OPTION OF HOLDERS
Change of Control
Upon the occurrence of a Change of Control, the Company will be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each holder's Notes at an offer
price in cash equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of repurchase (the
"Change of Control Payment"). Within 30 days following a Change of Control, the
Company will mail a notice to each holder of Notes describing the
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transaction that constitutes the Change of Control and offering to repurchase
Notes on the date specified in such notice, which date shall be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), pursuant to the procedures required by the
Indenture and described in such notice. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes as a result of a Change of
Control.
On or before the Change of Control Payment Date, the Company will, to the
extent lawful, (a) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (b) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (c) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent will promptly mail to each holder of Notes so tendered
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided, that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. The Company will publicly
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
Except as described above with respect to a Change of Control, the
Indenture does not contain provisions that permit the holders of the Notes to
require that the Company repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar transaction. In addition, the Company
could enter into certain transactions, including acquisitions, refinancings or
other recapitalizations, that could affect the Company's capital structure or
the value of the Notes, but that would not constitute a Change of Control. The
Company's ability to repurchase Notes following a Change of Control may also be
limited by the Company's then existing financial resources.
The Company will not be required to make a Change of Control Offer
following a Change of Control if a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the requirements
set forth in the Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
A "Change of Control" will be deemed to have occurred upon the occurrence
of any of the following: (a) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its Restricted Subsidiaries, taken as a whole, (b) the adoption of a
plan relating to the liquidation or dissolution of the Company, (c) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" or "group" (as such
terms are used in Section 13(d)(3) of the Exchange Act) becomes the "beneficial
owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act), directly or indirectly through one or more intermediaries, of more than
50% of the voting power of the outstanding voting stock of the Company or (d)
the first day on which more than a majority of the members of the Board of
Directors are not Continuing Directors; provided, however, that a transaction in
which the Company becomes a Subsidiary of another Person (other than a Person
that is an individual) shall not constitute a Change of Control if (i) the
stockholders of the Company immediately prior to such transaction "beneficially
own" (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act), directly or indirectly through one or more intermediaries, at least a
majority of the voting power of the outstanding voting stock of the Company
immediately following the consummation of such transaction and (ii) immediately
following the consummation of such transaction, no "person" or "group" (as such
terms are defined above), other than such other Person (but including the
holders of the Equity Interests of such other Person), "beneficially owns" (as
such term is defined above), directly or indirectly through one or more
intermediaries, more than 50% of the voting power of the outstanding voting
stock of the Company.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors who (a) was a member of the Board of Directors on the
date of original issuance of the Notes or (b) was nominated for election to the
Board of Directors with the approval of, or whose election to the Board of
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Directors was ratified by, at least two-thirds of the Continuing Directors who
were members of the Board of Directors at the time of such nomination or
election.
Asset Sales
The Indenture will provide that the Company will not, and will not permit
any of its Restricted Subsidiaries to, consummate an Asset Sale unless (a) the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (b) at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of cash; provided, that the amount of (i) any liabilities (as shown
on the Company's or such Restricted Subsidiary's most recent balance sheet) of
the Company or such Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any guarantee
thereof) that are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Company or such Restricted
Subsidiary from further liability and (ii) any securities, notes or other
obligations received by the Company or such Restricted Subsidiary from such
transferee that are immediately converted by the Company or such Restricted
Subsidiary into cash (to the extent of the cash received) shall be deemed to be
cash for purposes of this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company or any such Restricted Subsidiary may apply such Net Proceeds to (a)
permanently repay the principal of any secured indebtedness (to the extent of
the fair value of the assets securing such indebtedness, as determined by the
Board of Directors), (b) to acquire (including by way of a purchase of assets or
stock, merger, consolidation or otherwise) Productive Assets or (c) to make any
Investment permitted by the Indenture. Pending the final application of any such
Net Proceeds, the Company or any such Restricted Subsidiary may temporarily
reduce outstanding revolving credit borrowings, including borrowings under the
Revolving Credit Facility, or otherwise invest such Net Proceeds in any manner
that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that
are not applied or invested as provided in the first sentence of this paragraph
will be deemed to constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $10.0 million, the
Company will be required to make an offer to all holders of Notes (an "Asset
Sale Offer") to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof, plus accrued and unpaid interest,
if any, thereon to the date of purchase, in accordance with the procedures set
forth in the Indenture; provided, however, that, if the Company is required to
apply such Excess Proceeds to repurchase, or to offer to repurchase, any Pari
Passu Indebtedness, the Company shall only be required to offer to repurchase
the maximum principal amount of Notes that may be purchased out of the amount of
such Excess Proceeds multiplied by a fraction, the numerator of which is the
aggregate principal amount of Notes outstanding and the denominator of which is
the aggregate principal amount of Notes outstanding plus the aggregate principal
amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is less than the amount
that the Company is required to repurchase, the Company may use any remaining
Excess Proceeds for general corporate purposes. If the aggregate amount of Notes
surrendered by holders thereof exceeds the amount that the Company is required
to repurchase, the Trustee shall select the Notes to be purchased on a pro rata
basis. Upon completion of such offer to purchase, the amount of Excess Proceeds
shall be reset at zero.
CERTAIN COVENANTS
Restricted Payments
The Indenture will provide that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, (a) declare or
pay any dividend or make any other payment or distribution on account of the
Company's or any of its Restricted Subsidiaries' Equity Interests (including,
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without limitation, any payment in connection with any merger or consolidation
involving the Company) or to the direct or indirect holders of the Company's
Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company); (b) purchase, redeem or otherwise acquire or retire for value
(including without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company (other than any such
Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary
of the Company); (c) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value, any Indebtedness that
is subordinated to the Notes, except a payment of interest or principal at
Stated Maturity; or (d) make any Restricted Investment (all such payments and
other actions set forth in clauses (a) through (d) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(ii) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Consolidated Interest Coverage Ratio test set forth in the first
paragraph of the covenant described under the caption "-- Incurrence of
Indebtedness and Issuance of Preferred Stock"; and
(iii) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of the Indenture (excluding Restricted Payments
permitted by clauses (b), (c), (d) and (i), but including, without
duplication, Restricted Payments permitted by clauses (a), (e), (f), (g)
and (h), of the next succeeding paragraph), is less than the sum of (A) 50%
of the Consolidated Net Income of the Company for the period (taken as one
accounting period) from July 1, 1997 to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such deficit), plus
(B) 100% of the aggregate net cash proceeds received by the Company from
the issue or sale since the date of the Indenture of Equity Interests of
the Company (other than Disqualified Stock) or of Disqualified Stock or
debt securities of the Company that have been converted into such Equity
Interests (other than any such Equity Interests, Disqualified Stock or
convertible debt securities sold to a Restricted Subsidiary of the Company
and other than Disqualified Stock or convertible debt securities that have
been converted into Disqualified Stock), plus (C) to the extent that any
Restricted Investment that was made after the date of the Indenture is sold
for cash or otherwise liquidated or repaid for cash, the lesser of (1) the
cash return of capital with respect to such Restricted Investment (less the
cost of disposition, if any) and (2) the initial amount of such Restricted
Investment, plus (D) in the event that any Unrestricted Subsidiary is
redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal
to the fair value (as determined by the Board of Directors) of the
Company's Investments in such Restricted Subsidiary and (2) the amount of
Restricted Investments previously made by the Company and its Restricted
Subsidiaries in such Unrestricted Subsidiary.
The foregoing provisions will not prohibit (a) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of the
Indenture; (b) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary of the Company) of, other Equity
Interests of the Company (other than any Disqualified Stock); provided that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded from
clause (iii)(B) of the preceding paragraph; (c) the defeasance, redemption,
repurchase, retirement or other acquisition of subordinated Indebtedness with
the net cash proceeds from an incurrence of, or in exchange for, Permitted
Refinancing Indebtedness; (d) the payment of any dividend by a Restricted
Subsidiary of the Company to the holders of its Equity Interests on a pro rata
basis; (e) so long as no Default or Event of Default shall have occurred and be
continuing, the repurchase, redemption or other
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acquisition or retirement for value of any Equity Interests of the Company held
by any member of the Company's or any of its Restricted Subsidiaries' management
(or the estate or a trust for the benefit of any such member of management) upon
the death, disability or termination of employment of such member of management;
provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $500,000 in any calendar
year; (f) so long as no Default or Event of Default shall have occurred and be
continuing, the payment of regularly scheduled dividends on the Preferred Stock;
provided, that, with respect to all dividend payments on and after April 15,
2000, the Company would, at the time of the payment of such dividend and after
giving pro forma effect thereto as if such dividend had been paid at the
beginning of the applicable four-quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Consolidated Interest
Coverage Ratio test set forth in the first paragraph of the covenant described
above under caption "--Incurrence of Indebtedness and Issuance of Preferred
Stock"; (g) payments to enable the Company to redeem or repurchase stock
purchase rights or similar rights in an aggregate amount not to exceed $1.0
million; (h) the acquisition of Common Stock to be contributed to an employee
stock ownership plan or savings plan of the Company in an aggregate amount not
to exceed $200,000 in any calendar year; and (i) the acquisition of Equity
Interests of the Company in connection with the exercise of stock options,
warrants or stock appreciation or similar rights by way of cashless exercise or
in connection with the satisfaction of withholding tax obligations.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated will be deemed to be Restricted Payments at the
time of such designation. All such outstanding Investments will be deemed to
constitute Investments in an amount equal to the greater of (a) the net book
value of such Investments at the time of such designation and (b) the fair
market value of such Investments at the time of such designation. Such
designation will only be permitted if such Restricted Payment would be permitted
at such time and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Trustee. Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by the covenant "Restricted Payments" were computed.
Incurrence of Indebtedness and Issuance of Preferred Stock
The Indenture will provide that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness and that the Company will not permit any of its Restricted
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company and its Restricted Subsidiaries may incur Indebtedness if the
Consolidated Interest Coverage Ratio for the Company's most recently ended four
full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
would have been at least 2.0 to 1, determined on a pro forma basis (including a
pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred at the beginning of such four-quarter period.
The foregoing provisions will not apply to:
(a) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness in an aggregate amount not to exceed $125.0 million at any one
time outstanding pursuant to (i) the Revolving Credit Facility, (ii)
Capital Lease Obligations and (iii) purchase money or mortgage financings;
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(b) the incurrence by the Company and its Restricted Subsidiaries of
Existing Indebtedness;
(c) the incurrence by the Company and its Restricted Subsidiaries of
Hedging Obligations;
(d) the incurrence by the Company and its Restricted Subsidiaries of
Indebtedness represented by the Notes, the Subsidiary Guarantees and the
Indenture;
(e) the incurrence of intercompany Indebtedness between or among the
Company and any of its Wholly Owned Restricted Subsidiaries; provided that
any subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a Wholly
Owned Restricted Subsidiary of the Company, or any sale or other transfer
of any such Indebtedness to a Person that is neither the Company nor a
Wholly Owned Restricted Subsidiary of the Company, shall be deemed to
constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be; and
(f) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Debt in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund Indebtedness that was permitted by the Indenture to be incurred
(other than pursuant to clause (a) of this covenant).
In the event that the incurrence of any Indebtedness would be permitted by
the first paragraph set forth above or one or more of the provisions set forth
in the second paragraph above, the Company may designate (in the form of an
Officers' Certificate delivered to the Trustee) the particular provision of the
Indenture pursuant to which it is incurring such Indebtedness.
Liens
The Indenture will provide that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien on any asset now owned or hereafter acquired,
or any income or profits therefrom or assign or convey any right to receive
income therefrom, except Permitted Liens, unless all payments due under the
Indenture and the Notes are secured on an equal and ratable basis with the
obligations so secured until such time as such obligations are no longer secured
by a Lien.
Dividend and Other Payment Restrictions Affecting Subsidiaries
The Indenture will provide that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (a)(i) pay dividends
or make any other distributions to the Company or any of its Restricted
Subsidiaries on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or (ii) pay any indebtedness owed
to the Company or any of its Restricted Subsidiaries, (b) make loans or advances
to the Company or any of its Restricted Subsidiaries or (c) transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (1)
Existing Indebtedness as in effect on the date of the Indenture, (2) the
Indenture and the Notes, (3) applicable law, (4) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of the Indenture to
be incurred, (5) by reason of customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices, (6) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in clause
(c) above on the property so acquired, (7) customary provisions in bona fide
contracts for the sale of property or assets or (8) Permitted Refinancing
Indebtedness, provided that the restrictions contained in the agreements
governing such Permitted Refinancing Indebtedness are not materially more
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restrictive, taken as a whole, than those contained in the agreements governing
the Indebtedness being refinanced.
Merger, Consolidation, or Sale of Assets
The Indenture will provide that the Company may not consolidate or merge
with or into (whether or not the Company is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions, to another
corporation, Person or entity unless (a) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia, (b) the entity or Person formed
by or surviving any such consolidation or merger (if other than the Company) or
the entity or Person to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes all the obligations of the
Company under the Notes and the Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee, (c) immediately after such
transaction no Default or Event of Default exists and (d) except in the case of
a merger of the Company with or into a Wholly Owned Restricted Subsidiary of the
Company, the Company or the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made (A) will have Consolidated Net Worth immediately after the transaction
equal to or greater than the Consolidated Net Worth of the Company immediately
preceding the transaction and (B) will, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage
Ratio test set forth in the first paragraph of the covenant described above
under the caption "-- Incurrence of Indebtedness and Issuance of Preferred
Stock."
Transactions with Affiliates
The Indenture will provide that the Company will not, and will not permit
any of its Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (a) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person or, if there is no such comparable
transaction, on terms that are fair and reasonable to the Company, and (b) the
Company delivers to the Trustee (i) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in
excess of $1.0 million, a resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies with
clause (a) above and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors and (ii) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5.0 million, other than any such
transactions with a Person engaged in the passenger transportation business (or
a business that is reasonably complementary or related thereto as determined in
good faith by the Board of Directors), which Person is an Affiliate solely
because the Company has an Investment in such Person, an opinion as to the
fairness to the Company of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing; provided that the following shall be deemed not to be Affiliate
Transactions: (A) any employment agreement or other compensation plan or
arrangement entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business and consistent with the past practice of the
Company or such Restricted Subsidiary; (B) transactions between or among the
Company and/or its Restricted Subsidiaries; (C) Permitted Investments and
Restricted Payments that are permitted by the provisions of the Indenture; (D)
sales of Equity Interests (other than Disqualified Stock) of the Company to
Affiliates; and (E) sales of securities (other than securities referred to in
clause (D) hereof) of the Company to Affiliates on terms at
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least as favorable to the Company as the sale of identical securities to Persons
who are not Affiliates of the Company, provided that at least 50% of the total
amount of such securities sold in such transaction are sold to Persons who are
not Affiliates of the Company.
Additional Subsidiary Guarantees
The Indenture will provide that if the Company or any of its Restricted
Subsidiaries shall, after the date of the Indenture, acquire or create another
Restricted Subsidiary or designate an Unrestricted Subsidiary to be a Restricted
Subsidiary, then such newly acquired, created or designated Restricted
Subsidiary shall execute a Subsidiary Guarantee and deliver an opinion of
counsel in accordance with the terms of the Indenture.
Reports
Whether or not the Company is required to do so by the rules and
regulations of the Commission, the Company will file with the Commission (unless
the Commission will not accept such a filing) and, within 15 days of filing, or
attempting to file, the same with the Commission, furnish to the holders of the
Notes (a) all quarterly and annual financial and other information with respect
to the Company and its Restricted Subsidiaries that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
were required to file such forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants, and (b) all current reports that would be required to
be filed with the Commission on Form 8-K if the Company were required to file
such reports.
EVENTS OF DEFAULT AND REMEDIES
The Indenture will provide that each of the following constitutes an Event
of Default: (a) default for 30 days in the payment when due of interest on the
Notes; (b) default in payment when due of the principal of or premium, if any,
on the Notes; (c) failure by the Company to comply with the provisions described
under the caption "-- Change of Control"; (d) failure by the Company to comply
with the provisions described under the captions "-- Asset Sales,"
"-- Restricted Payments" or "-- Incurrence of Indebtedness and Issuance of
Preferred Stock," which failure remains uncured for 60 days; (e) failure by the
Company for 60 days after notice to comply with any of its other agreements in
the Indenture or the Notes; (f) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists or is created after the date of the Indenture, which default (i) is
caused by a failure to pay principal of or premium or interest on such
Indebtedness prior to the expiration of any grace period provided in such
Indebtedness (a "Payment Default") or (ii) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $10.0 million or more; (g) failure
by the Company or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $10.0 million, which judgments are not paid, discharged
or stayed for a period of 60 days; (h) failure by any Guarantor to perform any
covenant set forth in its Subsidiary Guarantee, or the repudiation by any
Guarantor of its obligations under its Subsidiary Guarantee or the
unenforceability of any Subsidiary Guarantee against a Guarantor for any reason,
unless, in each such case, such Guarantor and its Restricted Subsidiaries have
no Indebtedness outstanding at such time or at any time thereafter; and (i)
certain events of bankruptcy or insolvency with respect to the Company or any of
its Restricted Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company, any Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
without further action or notice. The Holders of a majority in aggregate
principal amount of the then
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outstanding Notes by written notice to the Trustee may on behalf of all of the
Holders rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest, premium or Liquidated Damages that
has become due solely because of the acceleration) have been cured or waived.
Holders of the Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Notes pursuant to the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs prior to April
15, 2002 by reason of any willful action (or inaction) taken (or not taken) by
or on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then the premium specified in the
Indenture shall also become immediately due and payable to the extent permitted
by law upon the acceleration of the Notes.
The holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
the principal of or interest or Liquidated Damages on the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each holder of Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Notes ("Legal
Defeasance") except for (a) the rights of holders of outstanding Notes to
receive payments in respect of the principal of and premium and interest, if
any, on such Notes when such payments are due from the trust referred to below,
(b) the Company's obligations with respect to the Notes concerning issuing
temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen
Notes and the maintenance of an office or agency for payment and money for
security payments held in trust, (c) the rights, powers, trusts, duties and
immunities of the Trustee, and the Company's obligations in connection therewith
and (e) the Legal Defeasance provisions of the Indenture. In addition, the
Company may, at its option and at any time, elect to have the obligations of the
Company released with respect to certain covenants that are described in the
Indenture ("Covenant Defeasance") and thereafter any omission to comply with
such obligations shall not constitute a Default or Event of Default with respect
to the Notes. In the event Covenant Defeasance occurs, certain events (not
including non-payment, bankruptcy, receivership, rehabilitation and insolvency
events) described under "Events of Default" will no longer constitute an Event
of Default with respect to the Notes.
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In order to exercise either Legal Defeasance or Covenant Defeasance, (i)
the Company must irrevocably deposit with the Trustee, in trust, for the benefit
of the holders of the Notes, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of and premium and interest, if any, on the outstanding
Notes on the stated maturity or on the applicable redemption date, as the case
may be, and the Company must specify whether the Notes are being defeased to
maturity or to a particular redemption date, (ii) in the case of Legal
Defeasance, the Company shall have delivered to the Trustee an opinion of
counsel in the United States reasonably acceptable to the Trustee confirming
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of the Indenture, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion of counsel shall confirm that,
the holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had not
occurred, (iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that the holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred, (iv) no Default or Event
of Default shall have occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit), (v) such Legal Defeasance or Covenant Defeasance
will not result in a breach or violation of, or constitute a default under any
material agreement or instrument (other than the Indenture) to which the Company
or any of its Restricted Subsidiaries is a party or by which the Company or any
of its Restricted Subsidiaries is bound, (vi) the Company must have delivered to
the Trustee an opinion of counsel to the effect that the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally, (vii) the Company must
deliver to the Trustee an Officers' Certificate stating that the deposit was not
made by the Company with the intent of preferring the holders of Notes over the
other creditors of the Company with the intent of defeating, hindering, delaying
or defrauding creditors of the Company or others and (viii) the Company must
deliver to the Trustee an Officers' Certificate and an opinion of counsel, each
stating that all conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
TRANSFER AND EXCHANGE
A holder of Notes may transfer or exchange Notes in accordance with the
Indenture. The Registrar and the Trustee may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company is not required to transfer or exchange
any Note selected for redemption. Also, the Company is not required to transfer
or exchange any Note for a period of 15 days before a selection of Notes to be
redeemed.
The registered holder of a Note will be treated as the owner of it for all
purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided below, the Indenture or the Notes may be amended or
supplemented with the consent of the holders of at least a majority in principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes).
Without the consent of each holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder): (a) reduce the
principal amount of Notes whose holders must
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consent to an amendment, supplement or waiver, (b) reduce the principal of or
change the fixed maturity of any Note or alter the provisions with respect to
the redemption of the Notes (other than provisions relating to the covenants
described above under the caption "-- Repurchase at the Option of Holders"), (c)
reduce the rate of or change the time for payment of interest on any Note, (d)
waive a Default or Event of Default in the payment of principal of or premium or
interest, if any, on the Notes (except a rescission of acceleration of the Notes
by the holders of at least a majority in aggregate principal amount of the Notes
and a waiver of the payment default that resulted from such acceleration), (e)
make any Note payable in money other than that stated in the Notes, (f) make any
change in the provisions of the Indenture relating to waivers of past Defaults
or the rights of holders of Notes to receive payments of principal of or premium
or interest, if any, on the Notes (except as permitted in clause (g) hereof),
(g) waive a redemption payment with respect to any Note (other than a payment
required by one of the covenants described above under the caption
"-- Repurchase at the Option of Holders") or (h) make any change in the
foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any holder of Notes,
the Company and the Trustee may amend or supplement the Indenture or the Notes
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company's obligations to holders of Notes in the case of a
merger or consolidation, to make any change that would provide any additional
rights or benefits to the holders of Notes or that does not adversely affect the
legal rights under the Indenture of any such holder, or to comply with
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the Trust Indenture Act.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any such
claim as security or otherwise. The Trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the Commission for permission to continue
or resign.
The holders of a majority in principal amount of the then outstanding Notes
will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee, subject to
certain exceptions. The Indenture provides that in case an Event of Default
shall occur (which shall not be cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent man in the conduct
of his own affairs. Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request of any holder of Notes, unless such holder shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or
expense.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for a full disclosure of all such terms, as well as any
other capitalized terms used herein for which no definition is provided.
"Affiliate" of any specified Person means an "affiliate" of such Person, as
such term is defined for purposes of Rule 144 under the Securities Act.
"Asset Sale" means (a) the sale, lease, conveyance or other disposition (a
"disposition") of any assets or rights (including, without limitation, by way of
a sale and leaseback), excluding sales of passenger tickets and inventory in the
ordinary course of business (provided that the disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by the provisions of the Indenture described
above under the caption "-- Repurchase at the Option of Holders -- Change of
Control" and/or the provisions described above under the caption "-- Certain
Covenants -- Merger, Consolidation or Sale of Assets" and not by the provisions
of the Asset Sale covenant), and (b) the issue or sale by the Company or any of
its Restricted Subsidiaries of Equity Interests of any of the Company's
Subsidiaries, in the case of either clause (a) or (b), whether in a single
transaction or a series of related transactions (i) that
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have a fair market value (as determined by the Board of Directors) in excess of
$1.0 million or (ii) for net proceeds in excess of $1.0 million. Notwithstanding
the foregoing, the following transactions will be deemed not to be Asset Sales:
(A) a disposition of obsolete or excess buses or real estate; (B) a disposition
of assets by the Company to a Wholly Owned Restricted Subsidiary or by a Wholly
Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted
Subsidiary; (C) a disposition of Equity Interests by a Wholly Owned Restricted
Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary; (D)
a Permitted Investment or Restricted Payment that is permitted by the Indenture;
(E) a sale-leaseback transaction involving buses or real estate within 365 days
of the acquisition of such buses or real estate by the Company or any of its
Restricted Subsidiaries; (F) a disposition of assets by the Company or any of
its Restricted Subsidiaries to a Person that is an Affiliate of the Company or
such Restricted Subsidiary and is engaged in the passenger transportation
business (or a business that is reasonably complementary or related thereto as
determined in good faith by the Board of Directors), which Person is an
Affiliate solely because the Company or such Restricted Subsidiary has an
Investment in such Person, provided that such transaction complies with the
covenant described under the caption "-- Certain Covenants -- Affiliate
Transactions" and (G) any customary pooling, interline, intermodal or other
similar arrangement with another Person engaged in the passenger transportation
business (including, without limitation, related dispositions of buses, terminal
space and other assets). The fair market value of any non-cash proceeds of a
sale of assets shall be determined by the Board of Directors, whose resolution
with respect thereto shall be delivered to the Trustee.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (a) in the case of a corporation, corporate stock,
(b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" means (a) United States dollars, (b) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (c) certificates of deposit and eurodollar
time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of $500 million, (d) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (b) and (c) above entered into with any financial
institution meeting the qualifications specified in clause (c) above, (d)
commercial paper having the highest rating obtainable from Moody's Investors
Service, Inc. or Standard & Poor's Rating Service and in each case maturing
within six months after the date of acquisition and (e) money market mutual
funds substantially all of the assets of which are of the type described in the
foregoing clauses (a) through (d).
"Common Stock" means the Common Stock of the Company, par value $.01 per
share.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus, to the extent
deducted or excluded in calculating Consolidated Net Income for such period, (a)
an amount equal to any extraordinary loss plus any net loss realized in
connection with an Asset Sale, (b) provision for taxes based on income or
profits of such Person and its Restricted Subsidiaries, (c) consolidated
interest expense of such Person and its Restricted Subsidiaries, whether paid or
accrued and whether or not capitalized (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations) and (d) depreciation and amortization
(including amortization of goodwill and other intangibles but excluding
amortization of prepaid
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cash expenses that were paid in a prior period) of such Person and its
Restricted Subsidiaries, in each case, on a consolidated basis and determined in
accordance with GAAP.
"Consolidated Interest Coverage Ratio" means with respect to any Person for
any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Consolidated Interest Expense of such Person for such period;
provided, however, that the Consolidated Interest Coverage Ratio shall be
calculated giving pro forma effect to each of the following transactions as if
each such transaction had occurred at the beginning of the applicable
four-quarter reference period: (a) any incurrence, assumption, guarantee or
redemption by the Company or any of its Restricted Subsidiaries of any
Indebtedness (other than revolving credit borrowings) subsequent to the
commencement of the period for which the Consolidated Interest Coverage Ratio is
being calculated but prior to the date on which the event for which the
calculation of the Consolidated Interest Coverage Ratio is made (the
"Calculation Date"); (b) any acquisition that has been made by the Company or
any of its Restricted Subsidiaries, or approved and expected to be consummated
within 30 days of the Calculation Date, including, in each case, through a
merger or consolidation, and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date (in which case Consolidated Cash Flow
for such reference period shall be calculated without giving effect to clause
(c) of the proviso set forth in the definition of Consolidated Net Income); and
(c) any other transaction that may be given pro forma effect in accordance with
Article 11 of Regulation S-X as in effect from time to time; provided, further,
however, that (i) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded and (ii) the
Consolidated Interest Expense attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Consolidated Interest Expense will not be
obligations of the referent Person or any of its Restricted Subsidiaries
following the Calculation Date.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the sum, without duplication, of (a) the consolidated interest expense
of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Hedging Obligations) and (b)
the consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that (a) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof, (b) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Subsidiary or its stockholders,
(c) the Net Income of any Person acquired in a pooling of interests transaction
for any period prior to the date of such acquisition shall be excluded and (d)
the cumulative effect of a change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (a) the consolidated equity of the common stockholders of such Person
and its consolidated Restricted Subsidiaries as of such date plus (b) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon
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issuance of such preferred stock, less (i) all write-ups (other than write-ups
resulting from foreign currency translations and write-ups of tangible assets of
a going concern business made within 12 months after the acquisition of such
business) subsequent to the date of the Indenture in the book value of any asset
owned by such Person or a consolidated Restricted Subsidiary of such Person,
(ii) all investments as of such date in unconsolidated Subsidiaries and in
Persons that are not Restricted Subsidiaries and (iii) all unamortized debt
discount and expense and unamortized deferred charges as of such date, in each
case determined in accordance with GAAP.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures (excluding any
maturity as a result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is 91 days after the date on which the Notes mature or are
redeemed or retired in full; provided, that any Capital Stock that would
constitute Disqualified Stock solely because the holders thereof (or of any
security into which it is convertible or for which it is exchangeable) have the
right to require the issuer to repurchase such Capital Stock (or such security
into which it is convertible or for which it is exchangeable) upon the
occurrence of an Asset Sale or a Change of Control shall not constitute
Disqualified Stock if such Capital Stock (and all such securities into which it
is convertible or for which it is exchangeable) provides that the issuer thereof
will not repurchase or redeem any such Capital Stock (or any such security into
which it is convertible or for which it is exchangeable) pursuant to such
provisions prior to compliance by the Company with the provisions of the
Indenture described under the caption "Repurchase at the Option of
Holders -- Change of Control" or "Repurchase at the Option of Holders -- Asset
Sales," as the case may be.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Revolving Credit
Facility) in existence on the date of the Indenture, until such amounts are
repaid.
"Existing Unrestricted Subsidiaries" means Amarillo Trailways Bus Center,
Inc., Los Rapidos, Inc. and Wilmington Union Bus Station Corporation.
"Fair Market Value" means, with respect to each share of Common Stock, the
closing price of a share of Common Stock on the principal securities exchange on
which the Common Stock is traded on the first trading day preceding the
announcement of the transaction pursuant to which such shares of Common Stock
were issued, or, if the Common Stock is not then traded on a securities
exchange, the fair market value of each share of Common Stock as determined by
the Board of Directors and set forth in an Officers' Certificate delivered to
the Trustee.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under (a) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, (b) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates and (c) any commodity futures contract, commodity option or similar
agreement or arrangement designed to protect such Person against fluctuations in
the price of commodities used in the ordinary course of business of such Person.
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"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP. The amount of any Indebtedness
outstanding as of any date shall be (a) the accreted value thereof, in the case
of any Indebtedness that does not require current payments of interest, and (b)
the principal amount thereof, in the case of any other Indebtedness.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees by the referent Person of, and Liens on any
assets of the referent Person securing, Indebtedness or other obligations of
other Persons), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would
be classified as investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of the covenant described above under the
caption "-- Restricted Payments."
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Limited-Recourse Debt" means Indebtedness (a) as to which neither the
Company nor any of its Restricted Subsidiaries (i) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) or is otherwise directly or indirectly liable (as a
guarantor or otherwise) or (ii) constitutes the lender, except, in the case of
clauses (i) and (ii), to the extent permitted by the covenants described under
the captions "-- Certain Covenants -- Restricted Payments" and "-- Incurrence of
Indebtedness and Issuance of Preferred Stock," (b) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) the holders of Indebtedness of the Company or any
of its Restricted Subsidiaries having an aggregate principal amount of $10.0
million or more to declare a default on such Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity and (c) as to
which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries, except to the extent of any Indebtedness incurred by the Company
or any of its Restricted Subsidiaries in accordance with clause (a)(i) above.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (a) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (i) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (ii)
the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (b) any extraordinary or nonrecurring gain (but
not loss), together with any related provision for taxes on such extraordinary
or nonrecurring gain (but not loss).
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"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (without duplication)
(a) the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, sales commissions, recording
fees, title transfer fees, title insurance premiums, appraiser fees and costs
incurred in connection with preparing such asset for sale) and any relocation
expenses incurred as a result thereof, (b) taxes paid or estimated to be payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (c) amounts required to be applied
to the repayment of Indebtedness (other than under the Revolving Credit
Facility) secured by a Lien on the asset or assets that were the subject of such
Asset Sale and (d) any reserve established in accordance with GAAP or any amount
placed in escrow, in either case for adjustment in respect of the sale price of
such asset or assets, until such time as such reserve is reversed or such escrow
arrangement is terminated, in which case Net Proceeds shall include only the
amount of the reserve so reversed or the amount returned to the Company or its
Restricted Subsidiaries from such escrow arrangement, as the case may be.
"Pari Passu Indebtedness" means, with respect to any Net Proceeds from
Asset Sales, Indebtedness of the Company and its Restricted Subsidiaries the
terms of which require the Company or such Restricted Subsidiary to apply such
Net Proceeds to offer to repurchase such Indebtedness.
"Permitted Investments" means (a) any Investment in the Company or in a
Wholly Owned Restricted Subsidiary of the Company, (b) any Investment in Cash
Equivalents, (c) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person if as a result of such Investment (i) such Person
becomes a Wholly Owned Restricted Subsidiary of the Company and a Guarantor or
(ii) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Wholly Owned Restricted Subsidiary of the Company, (d) any
Investment made as a result of the receipt of non-cash consideration from (i) an
Asset Sale that was made pursuant to and in compliance with the covenant
described above under the caption "-- Asset Sales" or (ii) a disposition of
assets that does not constitute an Asset Sale, (e) any Investment acquired
solely in exchange for Equity Interests (other than Disqualified Stock) of the
Company and (f) without duplication of clause (e) hereof, Investments in a
Person engaged principally in the business of providing passenger bus service or
businesses reasonably complementary or related thereto having an aggregate fair
market value (measured on the date such Investment is made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (f), that does not exceed the sum of
(i) $10.0 million, plus (ii) 50% of the aggregate net cash proceeds to the
Company from the Preferred Stock Offering, plus (iii) an amount equal to the
Fair Market Value of any Common Stock issued to acquire Productive Assets or a
Person that becomes a Wholly Owned Restricted Subsidiary of the Company;
provided that the aggregate amount of such Investments pursuant to this clause
(f) in Persons that are not Subsidiaries of the Company shall not exceed (A)
$10.0 million, plus (B) 25% of the aggregate net cash proceeds to the Company
from the Preferred Stock Offering, plus (iii) an amount equal to the Fair Market
Value of any Common Stock issued to acquire Productive Assets or a Person that
becomes a Wholly Owned Restricted Subsidiary of the Company.
"Permitted Liens" means (a) Liens securing up to $125.0 million of
Indebtedness incurred pursuant to clause (a) of the second paragraph of the
covenant entitled "-- Incurrence of Indebtedness and Issuance of Preferred
Stock"; (b) Liens in favor of the Company and its Restricted Subsidiaries, (c)
Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the Company,
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or any of its Restricted
Subsidiaries, (d) Liens on property existing at the time of acquisition thereof
by the Company or any Restricted Subsidiary of the Company, provided that such
Liens were in existence prior to the contemplation of such acquisition, (e)
Liens to secure the performance of statutory obligations, surety or appeal
bonds, performance bonds, insurance obligations, operating leases or other
obligations of a like nature incurred in the ordinary course of business, (f)
Liens on the Company's buses and real estate acquired with the proceeds of
Indebtedness incurred pursuant to the Consolidated
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Interest Coverage Ratio test set forth in the first paragraph of the covenant
described under the caption "-- Incurrence of Indebtedness and Issuance of
Preferred Stock," (g) Liens existing on the date of the Indenture, (h) Liens for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor, (i) Liens on real estate of the Company or any of its
Restricted Subsidiaries to secure Indebtedness of the Company or such Restricted
Subsidiary, provided that at the time such Lien is created (1) the Notes are
rated at least Ba3 by Moody's Investors Service, Inc. or at least BB- by
Standard & Poor's Rating Service, in either case after giving effect to the
incurrence of such Indebtedness and the creation of such Lien, and (2) the
incurrence of such Indebtedness is permitted by the terms of the Indenture
described under "-- Certain Covenants -- Incurrence of Indebtedness and Issuance
of Preferred Stock," and (j) Liens incurred in the ordinary course of business
of the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $5.0 million at any one time outstanding and that
(1) are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (2) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Indebtedness under the Revolving Credit
Facility) of the Company or any of its Restricted Subsidiaries; provided that
(a) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted
value, if applicable), plus premium, if any, and accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of reasonable expenses incurred in connection therewith), (b)
such Permitted Refinancing Indebtedness has a final maturity date no earlier
than the final maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded, (c) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes, such
Permitted Refinancing Indebtedness is subordinated in right of payment to the
Notes on terms at least as favorable, taken as a whole, to the holders of Notes
as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded and (d) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; provided, however, that a Restricted Subsidiary
may guarantee Permitted Refinancing Indebtedness incurred by the Company,
whether or not such Restricted Subsidiary was an obligor or guarantor of the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; provided, further, however, that if such Permitted Refinancing
Indebtedness is subordinated to the Notes, such guarantee shall be subordinated
to such Restricted Subsidiary's Subsidiary Guarantee to at least the same
extent.
"Productive Assets" means assets (other than assets that would be
classified as current assets in accordance with GAAP) of the kind used or usable
by the Company or its Restricted Subsidiaries in the passenger transportation
business (or any business that is reasonably complementary or related thereto as
determined in good faith by the Board of Directors).
"Qualified Equity Offering" means (a) any sale of Equity Interests (other
than Disqualified Stock) of the Company pursuant to an underwritten offering
registered under the Securities Act or (b) any sale of Equity Interests (other
than Disqualified Stock) of the Company so long as, at the time of consummation
of such sale, the Company has a class of common equity securities registered
pursuant to Section 12(b) or Section 12(g) under the Exchange Act.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary.
38
40
"Revolving Credit Facility" means that certain Second Amended and Restated
Loan and Security Agreement, dated as of June 5, 1995, as amended, by and
between the Company and Foothill Capital Corporation, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, in each case as amended, restated, modified, supplemented,
extended, renewed, replaced, refinanced or restructured from time to time,
whether by the same or any other agent or agents, lender or group of lenders,
whether represented by one or more agreements and whether one or more Restricted
Subsidiaries are added or removed as borrowers or guarantors thereunder or as
parties thereto.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (a) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (ii)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Unrestricted Subsidiary" means any Subsidiary that is designated by the
Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution,
but only to the extent that such Subsidiary (a) has no Indebtedness other than
Limited-Recourse Debt, (b) is not party to any agreement, contract, arrangement
or understanding with the Company or any Restricted Subsidiary of the Company
unless such agreement, contract, arrangement or understanding does not violate
the terms of the Indenture described under the caption " -- Certain
Covenants -- Transactions with Affiliates," (c) is a Person with respect to
which neither the Company nor any of its Restricted Subsidiaries has any direct
or indirect obligation (i) to subscribe for additional Equity Interests or (ii)
to maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results, in each case,
except to the extent otherwise permitted by the Indenture, and (d) has at least
one director on its board of directors that is not a director or executive
officer of the Company or any of its Restricted Subsidiaries and has at least
one executive officer that is not a director or executive officer of the Company
or any of its Restricted Subsidiaries. Any such designation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted by the covenant described above under the
caption "-- Certain Covenants -- Restricted Payments." If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be incurred as of such
date under the covenant described under the caption "-- Incurrence of
Indebtedness and Issuance of Preferred Stock," the Company shall be in default
of such covenant). The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (A) such
Indebtedness is permitted under the covenant described under the caption
"-- Incurrence of Indebtedness and Issuance of Preferred Stock," calculated on a
pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period, and (B) no Default or Event of Default would be
in existence following such designation.
39
41
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the sum of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries
of such Person.
40
42
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain federal income tax
considerations relevant to the exchange of Old Notes for New Notes, but does not
purport to be a complete analysis of all potential tax effects. The discussion
is based upon the Internal Revenue Code of 1986, as amended, Treasury
regulations, Internal Revenue Service rulings and pronouncements, and judicial
decisions now in effect, all of which are subject to change at any time by
legislative, judicial or administrative action. Any such changes may be applied
retroactively in a manner that could adversely affect a holder of the New Notes.
The description does not consider the effect of any applicable foreign, state,
local or other tax laws or estate or gift tax considerations.
EACH HOLDER SHOULD CONSULT HIS OWN TAX ADVISOR AS TO THE PARTICULAR TAX
CONSEQUENCES TO IT OF EXCHANGING OLD NOTES FOR NEW NOTES, INCLUDING THE
APPLICABILITY AND EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
EXCHANGE OF OLD NOTES FOR NEW NOTES
The exchange of Old Notes for New Notes pursuant to the Exchange Offer
should not constitute a significant modification of the terms of the Old Notes
and, therefore such exchange should not constitute an exchange for federal
income tax purposes. Accordingly, such exchange should have no federal income
tax consequences to holders of Old Notes.
41
43
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of New Notes received in exchange for Old Notes where
such Old Notes were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, for a period of one year after
the date of this Prospectus, they will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale.
The Company will not receive any proceeds from any sale of New Notes by
broker-dealers. New Notes received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the New Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such New Notes. Any broker-dealer that
resells New Notes that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such New Notes may be deemed to be an "underwriter" within the meaning of the
Securities Act, and any profit on any such resale of New Notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of one year after the date of this Prospectus, the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify holders of the Old Notes (including any
broker-dealers) against certain liabilities, including certain liabilities under
the Securities Act.
LEGAL MATTERS
The validity of the issuance of the New Notes offered hereby will be passed
upon for the Company by Weil, Gotshal & Manges LLP, Dallas, Texas and New York,
New York.
EXPERTS
The audited consolidated financial statements and schedules of Greyhound
Lines, Inc., incorporated by reference into this Prospectus and elsewhere in the
Registration Statement, to the extent and for the periods indicated in their
reports, have been audited by Arthur Andersen LLP, independent public
accountants, and are included herein in reliance upon the authority of said firm
as experts in accounting and auditing in giving said reports.
42
44
- ------------------------------------------------------
------------------------------------------------------
- ------------------------------------------------------
------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN, OR INCORPORATED BY
REFERENCE IN, THIS PROSPECTUS, IN CONNECTION WITH THE OFFERING COVERED BY THIS
PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE NEW NOTES
IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR INCORPORATED BY
REFERENCE HEREIN OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
---------------------
TABLE OF CONTENTS
PAGE
----
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
Prospectus Summary.................... 3
Risk Factors.......................... 9
Capitalization........................ 13
The Exchange Offer.................... 14
Description of Notes.................. 21
Certain Federal Income Tax
Considerations...................... 41
Plan of Distribution.................. 42
Legal Matters......................... 42
Experts............................... 42
[GREYHOUND LOGO]
GREYHOUND LINES, INC.
OFFER TO EXCHANGE ALL OUTSTANDING
11 1/2% SERIES A SENIOR NOTES DUE 2007
FOR
11 1/2% SERIES B SENIOR NOTES DUE 2007
--------------------
PROSPECTUS
--------------------
JUNE 30, 1997
- ------------------------------------------------------
------------------------------------------------------
- ------------------------------------------------------
------------------------------------------------------
45
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation of the Company provides for
mandatory indemnification of directors and officers to the fullest extent
permitted by the General Corporation Law of the State of Delaware. Under Section
145 of the General Corporation Law of the State of Delaware, the Company, as a
Delaware corporation, has the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding (other than an action by or in the right
of the Company) by reason of the fact that such person is or was a director,
officer, employee, or agent of the Company (an "Indemnitee"), against any and
all expenses, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit, or proceeding.
The Company's power to indemnify such a person applies only if such person acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests, of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Pursuant to Section 145, the Company also has the power to indemnify an
Indemnitee with respect to actions or suits brought by or in the right of the
Company, against expenses actually and reasonably incurred by him in connection
with the defense and settlement of suit or action (and not in satisfaction of a
judgment or settlement of the claim itself), if the Indemnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests, of the Company and with the further limitation that in such actions
no indemnification shall be made in the event of any adjudication of negligence
or misconduct unless a Delaware Court of Chancery, in its discretion, believes
that in light of all the circumstances indemnification should apply.
The General Corporation Law of the State of Delaware further specifically
provides that the indemnification authorized thereby shall not be deemed
exclusive of any other rights to which any such officer or director may be
entitled under any bylaws, agreements, vote of stockholders or disinterested
directors, or otherwise.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision eliminating
or limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provision shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware (relating to
liability for unauthorized acquisitions or redemptions of, or dividends on,
capital stock), or (iv) for any transaction from which the director derived an
improper personal benefit. Article Seventh of the Restated Certificate of
Incorporation of the Company provides that, to the fullest extent permitted by
the General Corporation Law of the State of Delaware, a director of the Company
shall not be liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person thereof in the
successful defense of any action, suit or proceeding) is asserted by a director,
officer or controlling person in connection with the securities being registered
pursuant to this Registration Statement, the Company will, unless in the opinion
of counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-1
46
ITEM 21. EXHIBITS.
The following is a list of all exhibits filed as a part of this
Registration Statement.
4.1 -- Indenture dated April 16, 1997 by and among the Company,
the Guarantors and PNC Bank, N.A., as Trustee.*
4.2 -- Form of 11 1/2% Series A Senior Note due 2007.*
4.3 -- Registration Rights Agreement dated April 16, 1997 by and
between the Company and Bear, Stearns & Co. Inc., as
initial purchaser.*
4.4 -- Indenture governing the 8 1/2% Convertible Subordinated
Debentures due March 31, 2007, including the form of
8 1/2% Convertible Subordinated Debentures due March 31,
2007.(1)
4.5 -- Second Amended and Restated Loan and Security Agreement
dated as of June 5, 1995 by and between Greyhound Lines,
Inc. and Foothill Capital Corporation.(2)
4.6 -- Amendment Number One to Second Amended and Restated Loan
and Security Agreement dated as of April 12, 1996 by and
between Greyhound Lines, Inc. and Foothill Capital
Corporation.(3)
4.7 -- Amendment Number Two to Second Amended and Restated Loan
and Security Agreement dates as of December 20, 1996 by
and between Greyhound Lines, Inc. and Foothill Capital
Corporation.(4)
4.8 -- Form of 11 1/2% Series B Senior Note due 2007+
4.9 -- Form of Guarantee+
5.1 -- Opinion of Weil, Gotshal & Manges LLP.+
12.1 -- Statement regarding Ratio of Earnings to Fixed Charges+
23.1 -- Consent of Weil, Gotshal & Manges (Included in Exhibit
5.1).
23.2 -- Consent of Arthur Andersen LLP.+
24.1 -- Power of Attorney.(Included on the signature page in Part
II of this Registration Statement)
25.1 -- Statement of Eligibility of the Trustee under the
Indenture filed as Exhibit 4.1+
99.1 -- Form of Letter of Transmittal*
99.2 -- Form of Notice of Guaranteed Delivery*
- ---------------
* Previously filed.
+ Filed herewith.
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 (File No. 33-47908) regarding the Registrant's Common Stock and 10%
Senior Notes Due 2001 held by the Contested Claims Pool Trust.
(2) Incorporated by reference from the Registrant's Quarterly Report on Form
10-Q for the quarter ended June 30, 1995.
(3) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1996.
(4) Incorporated by reference from the Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997.
II-2
47
ITEM 22. UNDERTAKINGS.
The Registrant hereby undertakes the following:
(a)(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
Offering.
(b) For purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) See Item 20.
(d) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(e) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
48
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on the 27th day of June
1997.
GREYHOUND LINES, INC.
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President and Chief
Financial Officer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* Chairman of the Board of Directors June 27, 1997
- -----------------------------------------------------
Thomas G. Plaskett
* Director, President and Chief June 27, 1997
- ----------------------------------------------------- Executive Officer (Principal
Craig R. Lentzsch Executive Officer)
/s/ STEVEN L. KORBY Executive Vice President and Chief June 27, 1997
- ----------------------------------------------------- Financial Officer (Principal
Steven L. Korby Financial and Accounting
Officer)
* Director June 27, 1997
- -----------------------------------------------------
Richard J. Caley
* Director June 27, 1997
- -----------------------------------------------------
Linda Chavez
* Director June 27, 1997
- -----------------------------------------------------
A. A. Meitz
* Director June 27, 1997
- -----------------------------------------------------
Frank L. Nageotte
* Director June 27, 1997
- -----------------------------------------------------
Alfred E. Osborne, Jr.
* Director June 27, 1997
- -----------------------------------------------------
Stephen M. Peck
* Director June 27, 1997
- -----------------------------------------------------
Ernest P. Werlin
*By: /s/ STEVEN L. KORBY
- -----------------------------------------------------
Steven L. Korby
Attorney-in-Fact
II-4
49
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
ATLANTIC GREYHOUND LINES OF
VIRGINIA, INC.
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ J. FLOYD HOLLAND Director June 27, 1997
- -----------------------------------------------------
J. Floyd Holland
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
II-5
50
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
EAGLE BUS MANUFACTURING, INC.
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
II-6
51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
FCA INSURANCE LIMITED
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Treasurer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
/s/ RICHARD D. SPURLING Director June 27, 1997
- -----------------------------------------------------
Richard D. Spurling
/s/ F. CHESLEY WHITE Director June 27, 1997
- -----------------------------------------------------
F. Chesley White
II-7
52
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
GLI HOLDING COMPANY
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
II-8
53
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
GREYHOUND DE MEXICO, S.A. DE C.V.
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Treasurer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
II-9
54
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
GRUPO CENTRO, INC.
By:
----------------------------------
Steven L. Korby
Executive Vice President,
Chief Financial Officer and
Treasurer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
II-10
55
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
LOS BUENOS LEASING CO., INC.
By: /s/ RALPH J. BORLAND
----------------------------------
Ralph J. Borland
President, Chief Executive Officer
and General Manager
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ RALPH J. BORLAND Sole Director June 27, 1997
- -----------------------------------------------------
Ralph J. Borland
II-11
56
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
SISTEMA INTERNACIONAL DE
TRANSPORTE DE AUTOBUSES, INC.
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
II-12
57
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
T&V HOLDING COMPANY
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President,
Chief Financial Officer and
Treasurer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
II-13
58
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
TEXAS, NEW MEXICO & OKLAHOMA
COACHES, INC.
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ ROBERT D. GREENHILL Director June 27, 1997
- -----------------------------------------------------
Robert D. Greenhill
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
/s/ J. FLOYD HOLLAND Director June 27, 1997
- -----------------------------------------------------
J. Floyd Holland
II-14
59
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
T.N.M. & O. TOURS, INC.
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ ROBERT D. GREENHILL Director June 27, 1997
- -----------------------------------------------------
Robert D. Greenhill
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
/s/ J. FLOYD HOLLAND Director June 27, 1997
- -----------------------------------------------------
J. Floyd Holland
/s/ RICHARD M. PORTWOOD Director June 27, 1997
- -----------------------------------------------------
Richard M. Portwood
II-15
60
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-4 and has duly caused this
Amendment No. 1 to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 27th day of June 1997.
VERMONT TRANSIT CO., INC.
By: /s/ STEVEN L. KORBY
----------------------------------
Steven L. Korby
Executive Vice President and
Chief Financial Officer
Each person whose signature to this Registration Statement appears below
appoints Craig R. Lentzsch and Steven L. Korby, and each of them, any one of
whom may act without the joinder of the other, as his agent and attorney-in-fact
to sign on his behalf individually and in the capacity stated below and to file
all pre-and post-effective amendments to this Registration Statement (and, in
addition, any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, for the offering to which this Registration
Statement relates), which amendments may make such changes in and additions to
this Registration Statement as such agent and attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
Director June , 1997
- -----------------------------------------------------
Craig R. Lentzsch
/s/ JACK W. HAUGSLAND Director June 27, 1997
- -----------------------------------------------------
Jack W. Haugsland
/s/ STEVEN L. KORBY Director June 27, 1997
- -----------------------------------------------------
Steven L. Korby
/s/ J. FLOYD HOLLAND June 27, 1997
- -----------------------------------------------------
J. Floyd Holland
II-16
61
EXHIBIT INDEX
4.1 -- Indenture dated April 16, 1997 by and among the Company,
the Guarantors and PNC Bank, N.A., as Trustee.*
4.2 -- Form of 11 1/2% Series A Senior Note due 2007*
4.3 -- Registration Rights Agreement dated April 16, 1997 by and
between the Company and Bear, Stearns & Co. Inc., as
initial purchaser.*
4.4 -- Indenture governing the 8 1/2% Convertible Subordinated
Debentures due March 31, 2007, including the form of
8 1/2% Convertible Subordinated Debentures due March 31,
2007.(1)
4.5 -- Second Amended and Restated Loan and Security Agreement
dated as of June 5, 1995 by and between Greyhound Lines,
Inc. and Foothill Capital Corporation.(2)
4.6 -- Amendment Number One to Second Amended and Restated Loan
and Security Agreement dated as of April 12, 1996 by and
between Greyhound Lines, Inc. and Foothill Capital
Corporation.(3)
4.7 -- Amendment Number Two to Second Amended and Restated Loan
and Security Agreement dates as of December 20, 1996 by
and between Greyhound Lines, Inc. and Foothill Capital
Corporation.(4)
4.8 -- Form of 11 1/2% Series B Senior Note due 2007+
4.9 -- Form of Guarantee+
5.1 -- Opinion of Weil, Gotshal & Manges LLP.+
12.1 -- Statement regarding Ratio of Earnings to Fixed Charges+
23.1 -- Consent of Weil, Gotshal & Manges LLP (Included in
Exhibit 5.1).
23.2 -- Consent of Arthur Andersen LLP.+
24.1 -- Power of Attorney.(Included on the signature page in Part
II of this Registration Statement)
25.1 -- Statement of Eligibility of the Trustee under the
Indenture filed as Exhibit 4.1+
99.1 -- Form of Letter of Transmittal*
99.2 -- Form of Notice of Guaranteed Delivery*
- ---------------
* Previously filed.
+ Filed herewith.
(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 (File No. 33-47908) regarding the Registrant's Common Stock and 10%
Senior Notes Due 2001 held by the Contested Claims Pool Trust.
(2) Incorporated by reference from the Registrant's Quarterly Report on Form
10-Q for the quarter ended June 30, 1995.
(3) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1996.
(4) Incorporated by reference from the Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997.