EXHIBIT 10.28
EXECUTION COPY
CONSENT AND AMENDMENT NO. 4
TO AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 5, 1998
THIS CONSENT AND AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT
AGREEMENT ("Amendment") is made as of June 5, 1998 by and among Pacer
International, Inc. (f/k/a PMT Holdings, Inc.), a Delaware corporation ("Pacer
International"), Pacific Motor Transport Company, a California corporation
("Pacific Motor"), Pacer International Rail Services LLC (f/k/a American
International Rail Services LLC), a Colorado limited liability company ("Pacer
Services"), Pacer Rail Services LLC (f/k/a American International Mechanical
Services LLC), a Colorado limited liability company ("Pacer Rail"), Interstate
Consolidation, Inc., a California corporation. ("ICI"), Interstate
Consolidation Service, Inc., a California corporation ("ICS"), Intermodal
Container Service, Inc., a California corporation ("IMCS"), Pacer Integrated
Logistics, Inc., a Delaware corporation ("PIL"), Pacer Logistics, Inc., a
California corporation ("Pacer Logistics"), Cross Con Acquisition Corp., a
Delaware Corporation ("Newco"), Cross Con Terminals, Inc., a Delaware
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corporation ("Terminals"), and Cross Con Transport, Inc., an Illinois
corporation ("Transport"), (Pacer International, Pacific Motor, Pacer Rail,
Pacer Services, ICI, ICS, IMCS, Pacer Logistics, PIL, Newco, Transport and
Terminals, being collectively referred to herein as the " Borrowers"), the
financial institutions listed on the signature pages hereof (the "Lenders") and
THE FIRST NATIONAL BANK OF CHICAGO, in its individual capacity as a Lender and
as agent (the "Agent") on behalf of the Existing Lenders under that certain
Amended and Restated Credit Agreement dated as of December 16, 1997 (as
amended by that certain Amendment No. 1 dated March 31, 1998, the Amendment No.
2 dated May 1, 1998 and the Amendment No. 3 dated as of May 29, 1998, the
"Credit Agreement"). Each defined term used herein and not otherwise defined
herein shall have the meaning given to it in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrowers (other than Newco, Terminals and Transport),
the Lenders and the Agent are currently parties to the Credit Agreement;
WHEREAS, the Borrowers have notified the Lenders and the Agent of the
formation by Pacer International of Newco and the proposed acquisition (the
"Acquisition") by Newco of 100% of the outstanding and issued Capital Stock of
Terminals and Transport (collectively, the "Companies");
WHEREAS, the Borrowers have requested that the Lenders consent to the
Acquisition, waive certain covenants under the Credit Agreement in respect of
the Acquisition, amend the Credit Agreement in certain respects in order to
integrate each of Newco and the Companies as a "Borrower", increase the
Revolving Loan Commitment and Term Loan Commitment thereunder and amend the
Credit Agreement in certain other respects; and
WHEREAS, the Lenders and the Agent are willing to amend the Credit
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Lenders and the Agent have agreed to the following:
ARTICLE I: AMENDMENTS
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Effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3 below, the Credit Agreement is
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hereby amended as follows:
1.01. Defined Terms. The definition of "Borrowers" set forth in
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Section 1.1 of the Credit Agreement is hereby amended by inserting the words
"Newco, Transport, Terminals," immediately after the term "Pacific Motor," as
and where "Pacific Motor," now appears in such definition.
1.02. New Defined Terms. New definitions of the terms "Terminals" and
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"Transport" shall be inserted into Section 1.1 of the Credit Agreement in its
appropriate alphabetical order and shall read as follows:
""NEWCO" means Cross Con Acquisition Corp., a Delaware corporation.
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""TERMINALS" means Cross Con Terminals, Inc., a Delaware corporation."
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""TRANSPORT" means Cross Con Transport, Inc., an Illinois corporation."
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1.03. Term Loans. Section 2.1 of the Credit Agreement is hereby
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amended to read in its entirety as follows:
" 2.1. Term Loans.
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(i) Amount of Term Loan. Subject to the terms and conditions set
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forth in this Agreement, on June 5, 1998, each Lender severally and not jointly
agrees to make, a term loan, in Dollars, to the Borrowers in an aggregate amount
not to exceed such Lender's Term Loan Commitment (each individually, a "TERM
LOAN" and, collectively, the "TERM LOANS"). All Term Loans shall be made by the
Lenders on the dates specified above simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its obligation to
make any Term Loan hereunder nor shall the Term Loan Commitment of any Lender be
increased or decreased as a result of any such failure.
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(ii) Borrowing Notice. The Borrowers shall deliver to the Agent a
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Borrowing Notice, signed thereby, on June 5, 1998, for the Term Loans to be made
on such dates. Such Borrowing Notice shall specify (i) the aggregate amount of
the Term Loans to be made on such date and (ii) instructions for the
disbursement of the proceeds of the Term Loans. The Term Loans shall initially
be Floating Rate Loans and thereafter may be continued as Floating Rate Loans or
converted into Eurodollar Rate Loans in the manner provided in Section 2.10 and
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subject to the other conditions and limitations therein set forth and set forth
in this Article II.
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(iii) Making of Term Loans. Promptly after receipt of the Borrowing
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Notice under Section 2.1(a)(ii) in respect of the Term Loans, the Agent shall
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notify each Lender by telex or telecopy, or other similar form of transmission,
of the proposed Advance. Each Lender shall deposit an amount equal to its Pro
Rata Share of the Term Loans with the Agent at its office in Chicago, Illinois,
in immediately available funds, on the date specified in the Borrowing Notice.
Subject to the fulfillment of the conditions precedent set forth in Sections 4.1
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and 4.2, the Agent shall make the proceeds of such amounts received by it
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available to the Borrowers at the Agent's office in Chicago, Illinois on such
date and shall disburse such proceeds in accordance with the Borrowers'
disbursement instructions set forth in such Borrowing Notice. The failure of
any Lender to deposit the amount described above with the Agent on the
applicable date of such Loan shall not relieve any other Lender of its
obligations hereunder to make its Term Loan.
(iv) Repayment of the Term Loans.
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(A) The Term Loans shall be repaid in twenty-six (26) consecutive
quarterly principal installments on the last day of each calendar quarter
commencing September 30, 1998, and continuing thereafter until the Term Loan
Termination Date, and the Term Loans shall be permanently reduced by the amount
of each installment on the date payment thereof is required to be made
hereunder. The installments shall be in the aggregate amounts set forth below:
Date of Installment Amount of Installment
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September 30, 1998 $ 622,500
December 31, 1998 $ 787,500
March 31, 1999 $ 787,500
June 30, 1999 $ 787,500
September 30,1999 $ 787,500
December 31, 1999 $ 787,500
March 31, 2000 $ 870,000
June 30, 2000 $ 870,000
September 30, 2000 $ 870,000
December 31, 2000 $ 870,000
March 31, 2001 $ 932,500
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June 30, 2001 $ 932,500
September 30, 2001 $ 932,500
December 31, 2001 $ 932,500
March 31, 2002 $ 1,082,500
June 30, 2002 $ 1,082,500
September 30, 2002 $ 1,082,500
December 31, 2002 $ 1,082,500
March 31, 2003 $ 1,145,000
June 30, 2003 $ 1,145,000
September 30, 2003 $ 1,145,000
December 31, 2003 $ 1,145,000
March 31, 2004 $ 1,080,000
June 30, 2004 $ 1,080,000
September 30, 2004 $ 1,080,000
December 16, 2004 $ 1,080,000.
Notwithstanding the foregoing, the final installment made on the Term Loan
Termination Date shall be in the amount of the then outstanding principal
balance of the Term Loans. In addition, the then outstanding principal balance
of the Term Loans, if any, shall be due and payable on the Termination Date. No
installment of any Term Loan shall be reborrowed once repaid.
(B) In addition to the scheduled payments on the Term Loans, the
Borrowers (i) may make the voluntary prepayments described in Section 2.4 for
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credit against the scheduled payments on the Term Loans pursuant to Section 2.4
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and (ii) shall make the mandatory prepayments prescribed in Section 2.5, for
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credit against such scheduled payments on the Term Loans pursuant to Section
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2.5."
1.04. Applicable Margins. Clause (ii) of Section 2.15(D) of the Credit
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Agreement is hereby amended by inserting the following phrase at the end thereof
immediately preceding the ultimate "." thereof:
"; provided further, that Xxxxx 0 above shall be deemed to apply to the
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determination of the Applicable Eurodollar Margin, Applicable Floating Rate
Margin and Applicable Commitment Fee Percentage at all times for the period
from June 5, 1998 through March 31, 1999"
1.05. Use of Proceeds. Section 6.2(K) of the Credit Agreement shall be
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amended to read in its entirety as follows:
"(K) Use of Proceeds. The Borrowers shall use the proceeds of the Loans
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(i) to effect Permitted Acquisitions (as defined in Section 6.3(G)) or any other
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Acquisition consented to in writing by the Required Lenders; and (ii) to provide
funds for the working capital needs and other
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general corporate purposes of the Borrowers and to repay outstanding Loans. The
Borrowers will not, nor will they permit any Subsidiary to, use any of the
proceeds of the Loans to purchase or carry any Margin Stock."
1.06. New Subsidiaries. A new Section 6.2(O) of the Credit Agreement is
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hereby inserted immediately following Section 6.2(N) and shall read in its
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entirety as follows:
"(O) Subsidiary Documentation. In connection with and at the time of the
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creation, acquisition and/or capitalization by any Borrower or any Subsidiary of
any Borrower of a new Subsidiary (a "NEW SUBSIDIARY") pursuant to any
transaction that is permitted by or not otherwise prohibited by this Agreement,
the Borrowers shall, or shall cause each New Subsidiary, to deliver to the
Agent: (a) an executed pledge agreement, pursuant to which the Agent receives a
first priority perfected pledge of and security interest in all of the
outstanding Capital Stock of the New Subsidiary owned by such Borrower or such
Subsidiary of a Borrower; (b) an executed secured subsidiary guaranty, pursuant
to which the New Subsidiary unconditionally guaranties the repayment of the
Secured Obligations, secured by a first priority perfected security interest in
all of the New Subsidiary's real and personal property, subject to no Liens
other than those permitted pursuant to the terms of this Agreement; and (c)
stock certificates, stock powers, mortgages, UCC financing statements, third-
party lien waiver agreements, corporate resolutions, opinions and other
documentation, the items set forth in the foregoing clauses (a), (b) and (c)
all to be in form and substance reasonably satisfactory to the Agent."
1.07. Investments. Clause (iv) of Section 6.3(D) of the Credit
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Agreement is hereby amended to read in its entirety as follows:
"(iv) Investments of any Borrower in any other Borrower or any
Subsidiary of such investing Borrower only if the requirements of Section
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6.2(O) have been complied with in respect to such Subsidiary; and"
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1.08. Restricted Payments. Section 6.3(F) of the Credit Agreement is
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hereby amended to read in its entirety as follows:
" (F) Restricted Payments. No Borrower shall declare or make any
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Restricted Payment, except that (i) the Borrowers may purchase shares of Capital
Stock from terminated employees in the aggregate amount not to exceed $500,000
in any fiscal year, (ii) Holdings may make Restricted Payments with respect to
dividends payable on its Series A Preferred Stock and on its common stock in an
aggregate amount not to exceed $504,000 for all such dividends in any calendar
year, (iii) the Borrowers may pay an advisory fee to Eos Management Inc. or its
Affiliates in connection with the acquisition of Terminals and Transport in an
aggregate amount not exceeding $40,000 and (iv) each Borrower which is a
subsidiary of a Borrower may make distributions to its applicable parent-
Borrower; provided, however, that no such Restricted Payments shall be permitted
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if either a Default or an Unmatured Default shall have occurred and be
continuing at the date of declaration or payment thereof or would result
therefrom."
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1.09. Permitted Acquisitions. Section 6.3(G) of the Credit Agreement is
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hereby amended to read in its entirety as follows:
"(G) Conduct of Business; Subsidiaries; Acquisitions. None of the
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Borrowers shall engage in any business other than the businesses engaged in by
it on the date hereof and any business or activities which are substantially
similar, related or incidental thereto. None of the Borrowers or their
respective Subsidiaries shall create or capitalize any Subsidiary (other than
New Subsidiaries satisfying the condition in Section 6.2(O)) after the date
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hereof or enter into any transaction or series of transactions in which it
acquires all or any significant portion of the assets Capital Stock of another
Person unless such acquisition meets the following requirements (each such
acquisition constituting a "PERMITTED ACQUISITION"):
(1) no Default or Unmatured Default shall have occurred and be
continuing or would result from such transaction or transactions or the
incurrence of any Indebtedness in connection therewith;
(2) in the case of an Acquisition of Equity Interests of an entity,
such Acquisition shall be no less than one hundred percent (100%) of the
Equity Interests of such entity;
(3) the business being acquired shall be substantially similar,
related or incidental to the businesses or activities engaged in by the
Borrowers and their Subsidiaries;
(4) after giving effect to such Acquisition, the representation and
warranties set forth in Article V hereof shall be true and correct in all
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material respects on and as of the date of such Acquisition with the same
effect as though made on and as of such date;
(5) prior to each such purchase, the Borrowers shall cause to be
delivered to the Agent and the Lenders a certificate from one of the
acquiring Borrower's Authorized Officers demonstrating to the satisfaction
of the Agent and the Required Lenders that after giving effect to such
transaction or transactions and the incurrence of any Indebtedness
permitted by Section 6.3(A) in connection therewith on a pro forma basis as
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if such acquisition and such incurrence of Indebtedness had occurred on the
first day of the twelve-month period ending on the last day of the
Borrowers' most recently completed fiscal quarter, the Borrowers would have
been in compliance with all of the covenants contained in this Agreement at
all times during such twelve-month period, including, without limitation,
the financial covenants of Section 6.4;
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(6) the purchase is consummated pursuant to a negotiated acquisition
agreement on a non-hostile basis and involves the purchase of a business
line similar, related or incidental to that of the Borrowers and their
respective Subsidiaries;
(7) the Borrowers and their Subsidiaries shall be in compliance with
the requirements set forth in Section 6.2(O) hereof; and
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(8) the cash portion of the purchase price (including assumed
Indebtedness) in connection with any and all such transactions shall not
exceed:
(A) for any single transaction or series of related transactions,
$5,000,000; and
(B) for all transactions during the twelve-month period ending
on the date of such transaction, $10,000,000 (determined without
taking into account any Acquisition made on or prior to June 5,
1998)."
1.10. Subsidiaries. Section 6.3(P) is hereby struck from the Credit
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Agreement.
1.11. Financial Covenants: Definitions. A new definition of the term
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"Consolidated Net Worth" shall be inserted into Section 6.4(A) of the Credit
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Agreement in its appropriate alphabetical order and shall read as follows:
""CONSOLIDATED NET WORTH" means, at a particular date, all amounts which
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would be included under shareholders' equity for Holdings and it consolidated
Subsidiaries determined in accordance with Agreement Accounting Principles."
1.12. Fixed Charge Coverage Ratio. Clauses (1), (2), (3), (4) and (5)
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of set forth in Section 6.4(B) shall be replaced in their entirety by clauses
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(1), (2) and (3) set forth below:
"(1) 1.10 to 1.00 for each fiscal quarter for the period commencing
with the fiscal quarter ending June 30, 1998 through the fiscal quarter
ending September 30, 1998;
(2) 1.15 to 1.00 for each fiscal quarter for the fiscal quarter ending
December 31, 1998;
(3) 1.20 to 1.00 for each fiscal quarter for the period commencing
with the fiscal quarter ending March 31, 1999 through the fiscal quarter
ending June 30, 1999; and
(4) 1.25 to 1.00 for each fiscal quarter thereafter."
1.13. Maximum Leverage Ratio. Section 6.4(C) is hereby amended to read
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in its entirety as follows:
"(C) Maximum Leverage Ratio. Holdings and its Subsidiaries, determined
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on a consolidated basis, shall not permit the ratio ("LEVERAGE RATIO") of (i)
Indebtedness of the Borrowers and their consolidated subsidiaries for borrowed
money that would be required to be reflected as "total debt" on a balance sheet
prepared in accordance with Agreement Accounting Principles plus the face amount
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of outstanding letters of credit issued for the Borrowers respective accounts to
(ii) EBITDA of not greater than the ratio set forth below at the end of the
fiscal quarter ending on the corresponding date set forth below:
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PERIOD ENDING MAXIMUM LEVERAGE RATIO
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June 30, 1998 4.00 to 1.00
September 30, 1998 3.50 to 1.00
December 31, 1998 3.25 to 1.00
March 31, 1999 3.25 to 1.00
June 30, 1999 3.25 to 1.00
September 30, 1999 3.25 to 1.00
December 31, 1999 2.75 to 1.00
March 31, 2000 2.75 to 1.00
June 30, 2000 2.75 to 1.00
September 30, 2000 2.75 to 1.00
December 31, 2000 and each
quarter thereafter 2.50 to 1.00
In each case, the Leverage Ratio shall be determined as of the last day of each
fiscal quarter based upon (A) for Indebtedness, Indebtedness as of the last day
of each such fiscal quarter; and (B) for EBITDA, the actual amount of EBITDA for
the four-quarter period ending on such day (provided, however, that (a) for the
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fiscal quarter ending June 30, 1998, the Leverage Ratio shall be calculated
using EBITDA for the fiscal quarter ending June 30, 1998 multiplied by four,
(b) for the fiscal quarter ending September 30, 1998, the Leverage Ratio shall
be calculated using EBITDA for the two fiscal quarters ending September 30, 1998
multiplied by two, and (c) for the fiscal quarter ending December 31, 1998, the
Leverage Ratio shall be calculated using EBITDA for the three fiscal quarters
ending December 31, 1998 multiplied by 4/3). In addition, in each case, EBITDA
shall be calculated for the period ending June 30, 1998 by including (on a pro
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forma basis for the period from the first day of such period through June 5,
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1998) the actual amount of EBITDA attributable to Transport and Terminals during
such period, utilizing financial statements of Transport and Terminals obtained
from the seller or management thereof and in form and broken down in a manner
consistent with the audited financial statements of Terminals and Transport for
the fiscal year ended December 31, 1997, previously delivered to the Agent."
1.14. Minimum Consolidated Net Worth. Section 6.4(D) is hereby
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amended and restated in its entirety to read as follows:
"(D) Minimum Consolidated Net Worth. Holdings shall not permit its
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Consolidated Net Worth at any time to be less than the sum of (i) 80% of
Consolidated Net Worth as determined at December 31, 1997, plus (ii) fifty
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percent (50%) of Net Income (if positive) calculated separately for each fiscal
quarter ending after December 31, 1997, plus (iii) eighty percent (80%) of the
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increase in the Consolidated Net Worth resulting from the issuance by Holdings
or any Subsidiary of Holdings of any Capital Stock."
1.15. Capital Expenditures. Section 6.4(E is hereby amended and
restated in its entirety to read as follows:
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"(E) Capital Expenditures. Holdings will not expend or permit its
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Subsidiaries to expend, or be committed to expend, for Capital Expenditures in
the acquisition of fixed assets during any one fiscal year on a non-cumulative
basis in the aggregate in excess of $1,250,000 plus the difference, if positive,
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between the maximum aggregate amount of Capital Expenditures permitted to be
expended in the immediately preceding fiscal year and the amount of Capital
Expenditures actually expended in the immediately preceding fiscal year;
provided, however, that the Borrowers may expend an additional amount of up to
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$1,250,000 in the aggregate for computer systems (including hardware and
software); such amount not to be applied to the limitation expressed above."
1.16. Guaranty. Any reference set forth in Article IX of the Credit
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Agreement to the term "Obligation" or "Obligations" is hereby amended to be a
reference to the term "Secured Obligation" or "Secured Obligations",
respectively.
1.17. Commitments. Exhibit B to the Credit Agreement is hereby replaced
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in its entirety by Exhibit B attached hereto effectively increasing the
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aggregate Revolving Loan Commitment and aggregate Term Loan Commitment of the
Lenders.
1.18. Supplemental Disclosures. Each of the Schedules attached to the
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Credit Agreement are hereby amended and restated in their entirety by the
Schedules attached hereto pursuant to the terms of Section 1.3 of the Credit
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Agreement.
ARTICLE II: CONSENT AND LIMITED WAIVER
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2.01. Upon the effectiveness of this Amendment, the Lenders hereby
consent to the consummation of the Acquisition and waive (a) the restrictions
set forth in Sections 6.3(D) and (G) of the Credit Agreement solely with respect
to the consummation of the Acquisition.
ARTICLE III: CONDITIONS PRECEDENT
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3.01. This Amendment shall become effective and be deemed effective as
of the date hereof, if, and only if, the Agent shall have received each of the
following:
(a) duly executed original counterparts of this Amendment from the
Borrowers and each of the Lenders together with all of the schedules and
exhibits to be attached hereto;
(b) duly executed Revolving Loan Notes and Term Loan Notes in favor of
each of the Lenders issued by the Borrowers (the "Notes");
(c) Secretary's Certificate of each Borrower certifying (i) copies of
the resolutions of the Board of Directors or an equivalent thereof (as
attached thereto) of such Borrower approving such Borrower's execution and
delivery of this Amendment and all other documents relating hereto, (ii) a
copy of the Articles of Incorporation of each
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Borrower or an equivalent thereof (as attached thereto) as true and
correct, (iii) a copy of the By-Laws of each Borrower or an equivalent
thereof (as attached thereto) as true and correct, and (iv) the names,
titles and signatures of the officers of each Borrower authorized to sign
this Amendment and all other documents relating hereto;
(d) duly executed original counterparts of a Security Agreement
("Transport Security Agreement") evidencing the granting of a security
interest by Transport to and in favor of the Agent, for the benefit of the
Lenders;
(e) duly executed original counterparts of a Security Agreement
("Terminals Security Agreement") evidencing the granting of a security
interest by Terminals to and in favor of the Agent, for the benefit of the
Lenders;
(f) duly executed original counterparts of a Security Agreement
("Newco Security Agreement") evidencing the granting of a security interest
by Newco to and in favor of the Agent, for the benefit of the Lenders;
(g) duly executed pledge supplement, (the "Pledge Supplement")
evidencing the pledge by Pacer International of 100% of the Capital Stock
of each Company and Newco pursuant to the Amended and Restated Pledge
Agreement executed and delivered by Pacer International and dated as of May
1, 1998, together with the stock certificates representing such Capital
Stock of the Companies and related stock powers signed in blank;
(h) duly executed Uniform Commercial Code financing statements naming
Transport as debtor and the Agent as Secured Party to be filed with the
Secretary of State of Illinois;
(i) duly executed Uniform Commercial Code financing statements naming
Terminals as debtor and the Agent as Secured Party to be filed with the
Secretary of State of Illinois;
(j) assignment of Pacer International's interests in the Stock
Purchase Agreement among Pacer International, Inc., Terminals, Transport
and Xxxxxxx X. Xxxxxx dated as of May 29, 1998 (the "Stock Purchase
Agreement") together with a copy of the executed Stock Purchase Agreement
and other evidence that the Acquisition shall have been consummated;
(k) opinions of counsel to the Borrowers and addressed to the Lenders,
as to, among other things, the consummation of the Acquisition, the due
authorization, enforceability and validity of this Amendment, the Notes
executed and the other documents delivered with respect hereto by each
Borrower (covering legal jurisdictions of California, Colorado, Delaware
and Illinois and including a perfection opinion with respect to the Newco
Security Agreement, Transport Security Agreement and Terminals Security
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Agreement and a perfection and priority opinion with respect to the Pledge
Supplement) and in form reasonably acceptable to the Lenders; and
(l) evidence satisfactory to the Agent that all conditions precedent
to, and all consents necessary to permit, the Acquisition have been
satisfied or waived, and that simultaneously with the effectiveness hereof,
the Acquisition will be consummated and Pacer International will be
obtaining at such time good and marketable title to all of the outstanding
Equity Interests of Terminals and Transport free and clear of any Liens.
ARTICLE IV: REPRESENTATIONS OF THE BORROWERS
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4.01 The Borrowers hereby represent and warrant as follows:
(a) This Amendment and the Credit Agreement as previously executed
and as amended hereby, constitute legal, valid and binding obligations of
the Borrowers and are enforceable against the Borrowers in accordance with
their terms.
(b) In order to induce the Lenders to execute and deliver this
Amendment, the Borrowers hereby represent to the Lenders that as of the
date hereof and after giving effect to the Acquisition and this Amendment,
the representations and warranties set forth in Article V of the Credit
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Agreement are and shall be and remain true and correct (except that the
representations contained in Section 5.5 shall be deemed to refer to the
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most recent financial statements of the Borrowers delivered to the Lenders)
and the Borrowers are in full compliance with all of the terms and
conditions of the Credit Agreement (including, without limitation, the
provisions of Article VI to the extent the same are not specifically waived
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hereby), and no Default or Unmatured Default has occurred and is continuing
under the Credit Agreement or shall result after giving effect to the
Acquisition or this Amendment.
ARTICLE V: MISCELLANEOUS
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5.01. Companies as Borrowers. Each Company and Newco shall, upon the
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effectiveness of and as evidenced by the execution of this Amendment, hereby
become a Borrower under the Credit Agreement and shall have the rights and
obligations of a Borrower thereunder. Each of Newco and the Companies agrees
that it will perform in accordance with the terms of the Credit Agreement, as
amended hereby, all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Borrower. The respective
notice address for each Company under the Credit Agreement shall be as set forth
on the signature page hereof.
5.02. References in Credit Agreement. Upon the effectiveness of this
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Amendment, on and after the date hereof, each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to the
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Amended and Restated Credit Agreement dated as of December 16, 1997, as amended
previously and as amended hereby.
5.03. Credit Agreement in Full Force and Effect. Except as
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specifically amended above, the Credit Agreement and all other documents,
instruments and agreements executed and/or delivered in connection therewith
shall remain in full force and effect, and are hereby ratified and confirmed.
5.04. Express Limitation of Waivers. The execution, delivery and
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effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Agent or any of the
Lenders, nor constitute a waiver of any provision of the Credit Agreement or any
other documents, instruments and agreements executed and/or delivered in
connection therewith.
5.05 Reaffirmation of Secured Obligations/Collateral Documents. This
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Agreement is not intended to and shall not constitute a novation. All Loans
made and Secured Obligations incurred under the Credit Agreement which are
outstanding prior to the date of the effectiveness hereof shall continue as
Loans and Secured Obligations under (and shall be governed by the terms of) the
Credit Agreement as amended hereby. Furthermore, the Borrowers have heretofore
delivered to the Agent, for the benefit of the Holders of Secured Obligations,
certain Collateral Documents evidencing the granting of collateral security for
the Secured Obligations and the Borrowers hereby acknowledge and agree that,
notwithstanding the execution and delivery of this Amendment, the Collateral
Documents remain in full force and effect and the rights and remedies of the
Lenders thereunder, the obligations of the Borrowers thereunder and the liens
and security interest created and provided for thereunder remain in full force
and effect and shall not be affected, impaired or discharged hereby. Nothing
herein contained shall in any manner affect or impair the priority of liens and
security interests created and provided for by the Collateral Documents as to
the Secured Obligations which would be secured thereby prior to giving effect to
this Amendment.
5.06. Costs and Expenses. The Borrowers agree to pay all reasonable
------------------
costs, fees and out-of-pocket expenses (including attorneys' fees and expenses
charged to the Agent) incurred by the Agent in connection with the preparation,
execution and enforcement of this Amendment.
5.07. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS (INCLUDING 735
ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS).
5.08. Headings. Section headings in this Amendment are included herein
--------
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
12
5.09. Counterparts. This Amendment may be executed by one or more of
------------
the parties to the Amendment on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
13
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
CROSS CON TERMINALS, INC.
By:___________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
Address:
c/o Pacer International, Inc.
0000 Xx. Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CROSS CON TRANSPORT, INC.
By:___________________________
Name: Xxxxxxx X. Xxxxxx
Title: President
Address:
c/o Pacer International, Inc.
0000 Xx. Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
PACER LOGISTICS, INC.
By:___________________________
Name:
Title:
PACER INTEGRATED LOGISTICS, INC.
By:___________________________
Name:
Title:
PACER INTERNATIONAL, INC.
(f/k/a PMT Holdings, Inc.)
By:___________________________
Name:
Title:
PACIFIC MOTOR TRANSPORT COMPANY
By:___________________________
Name:
Title:
PACER INTERNATIONAL RAIL SERVICES LLC
(f/k/a American International Rail Service LLC)
By: Pacific Motor Transport Company
Its: Manager
By:___________________________
Name:
Title:
PACER RAIL SERVICES LLC
(f/k/a American International Mechanical Service,
LLC)
By: Pacific Motor Transport Company
Its: Manager
By:___________________________
Name:
Title:
INTERSTATE CONSOLIDATION, INC.
By:___________________________
Name:
Title:
INTERSTATE CONSOLIDATION SERVICE, INC.,
By:___________________________
Name:
Title:
INTERMODAL CONTAINER SERVICE, INC.
By:___________________________
Name:
Title:
CROSS CON ACQUISITION CORP.
By:___________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Assistant Secretary &
Assistant Treasurer
Address:
c/o Pacer International, Inc.
0000 Xx. Xxxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE FIRST NATIONAL BANK OF
CHICAGO, as Agent and as a Lender
By:___________________________
Name: Xxxx Xxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., as a Lender
By:___________________________
Name:
Title:
BANKBOSTON, N.A., as a Lender
By:___________________________
Name:
Title:
EXHIBIT B
TO
AMENDED AND RESTATED CREDIT AGREEMENT
COMMITMENTS
-----------
I. REVOLVING LOAN COMMITMENTS
Amount of Term % of Term
Lender Loan Commitment Loan Commitment
------ --------------- ---------------
The First National
Bank of Chicago $12,500,000 50%
Union Bank $ 5,000,000 20%
of California, N.A.
BankBoston, N.A. $ 7,500,000 30%
TOTAL $25,000,000.00 100.000000 %
II. TERM LOAN COMMITMENTS
Amount of Term % of Term
Lender Loan Commitment Loan Commitment
------ --------------- ---------------
The First National
Bank of Chicago $12,500,000 50%
Union Bank $ 5,000,000 20%
of California, N.A.
BankBoston, N.A. $ 7,500,000 30%
TOTAL $25,000,000.00 100.000000 %
