EXHIBIT 10.21
EXECUTION COPY
AMENDMENT NO. 3
TO AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 29, 1998
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is made as of May 29, 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"), and Intermodal Container Service, Inc., a
California corporation ("IMCS"), Pacer Integrated Logistics, Inc., a Delaware
corporation ("PIL"), Pacer Logistics, Inc., a California corporation ("Pacer
Logistics") (Pacer International, Pacific Motor, Pacer Rail, Pacer Services,
ICI, ICS, IMCS, Pacer Logistics and PIL being collectively referred to 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 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 and the
Amendment No. 2 dated May 1, 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, the Lenders and the Agent are parties to
the Credit Agreement;
WHEREAS, the Borrowers have requested that the Lenders increase the
Revolving Loan Commitment under the Credit Agreement; 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:
1. Amendments to Credit Agreement. Effective as of the date hereof and
------------------------------
subject to the satisfaction of the conditions precedent set forth in Section 2
below, the Credit Agreement is hereby amended as follows:
(a) The definitions of the terms "Permitted Insurance Collateralized
Financing" and "Permitted Purchase Money Indebtedness" appearing in
Section 1.1 of the Credit Agreement are hereby amended to read in their
-----------
entirety as follows:
"PERMITTED INSURANCE COLLATERALIZED FINANCING" is defined in
--------------------------------------------
Section 6.3(A)(n).
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in Section
------------------------------------- -------
6.3(A)(h).
---------
(b) A new definition of the term "Year 2000 Issues" shall be inserted
in its appropriate alphabetical order into Section 1.1 of the Credit
-----------
Agreement and shall read in its entirety as follows:
"YEAR 2000 ISSUES" mean the anticipated costs, problems and
----------------
uncertainties associated with the inability of certain computer
applications to effectively handle data including dates on and after
January 1, 2000, as it affects the business, operations, and
financial condition of the Borrowers, or each Borrower and its
respective Subsidiaries."
(c) A new section is hereby inserted in the Credit Agreement
immediately after Section 5.22 and shall read in its entirety as follows:
------------
" 5.23 Year 2000 Issues. Each of the Borrowers and their
----------------
respective Subsidiaries has made a full and complete assessment in all
material respects of the Year 2000 Issues and has a realistic and
achievable program to remedy the year 2000 Issues on a timely basis. Based
on this assessment and program, the Borrowers do not reasonably anticipate
any Material Adverse Effect as a result of Year 2000 Issues."
(d) A new section is hereby inserted in the Credit Agreement
immediately after Section 6.2(N) and shall read in its entirety as
--------------
follows:
" (N) Year 2000 Issues. Each Borrower shall and shall cause each
----------------
of its Subsidiaries to take all actions reasonably necessary to assure
that the Year 2000 Issues will not have a Material Adverse Effect."
(e) Exhibit B to the Credit Agreement is hereby replaced in its
---------
entirety by Exhibit B attached hereto.
---------
(f) Exhibit I to the Credit Agreement is hereby replaced in its
---------
entirety by Exhibit I attached hereto.
---------
2
2. Conditions of Effectiveness. This Amendment shall become effective
---------------------------
and be deemed effective as of the dated 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;
(b) duly executed Amended and Restated Revolving Loan Note of the
Borrowers (the "Note");
(c) Secretary's Certificate of each Borrower certifying (i) copies of
the resolutions of the Board of Directors or the equivalent thereof (as
attached thereto) of such Borrower approving such Borrower's execution
and delivery of this Amendment and all other documents relation hereto,
(ii) a copy of the Articles of Incorporation of such Borrower or the
equivalent thereof (as attached thereto) as true and correct, (iii) a
copy of the By-Laws of each Borrower or the 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; and
(d) opinions of counsel to the Borrowers and addressed to the
Lenders, as to the due authorization, enforceability and validity of
this Amendment and the Notes executed and delivered by each Borrower
(covering legal jurisdictions of California, Colorado and Delaware) and
in form reasonably acceptable to the Lenders; and
(e) a duly executed Assignment Agreement from each of BankBoston,
N.A. and Union Bank of California, N.A. (collectively, the "New
Lenders") evidencing the assignment by The First National Bank of
Chicago of a portion of its commitment to the New Lenders.
4. Representations and Warranties of the Company. 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) Upon the effectiveness of this Amendment, the Borrowers hereby
reaffirm all covenants, representations and warranties made in the
Credit Agreement, to the extent the same are not specifically waived
hereby, and agree that all such covenants, representations and
warranties shall be deemed to have been remade as of the effective date
of this Amendment.
3
5. Reference to the Effect on the Credit Agreement and other Loan
--------------------------------------------------------------
Documents.
---------
(a) Upon the effectiveness of this 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 Amended and Restated Credit Agreement dated as of
December 16, 1997, as amended previously and as amended hereby.
(b) Except as 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.
(c) The execution, delivery and 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.
(d) The Borrowers have heretofore executed and delivered to the
Agent, for the benefit of the Lenders, 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.
6. 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.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS)
OF THE STATE OF ILLINOIS.
8. 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.
9. 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.
4
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
PACER LOGISTICS, INC.
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Chairman
PACER INTEGRATED LOGISTICS, INC.
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Chairman
PACER INTERNATIONAL, INC.
(f/k/a/ PMT Holdings, Inc.)
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: President and CEO
PACIFIC MOTOR TRANSPORT COMPANY
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Chairman
PACER INTERNATIONAL RAIL SERVICES
LLC
(f/k/a American International Rail Services LLC)
By: Pacific Motor Transport Company
Its: Manager
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Chairman
PACER RAIL SERVICES LLC
(f/k/a/ American International Mechanical Services
LLC)
By: Pacific Motor Transport Company
Its: Manager
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Chairman
INTERSTATE CONSOLIDATION, INC.
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Chairman
INTERSTATE CONSOLIDATION SERVICE,
INC.,
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Chairman
INTERMODAL CONTAINER SERVICE, INC.
By: /s/ Xxx Xxxxx
-------------------------
Name: Xxx Xxxxx
Title: Chairman
THE FIRST NATIONAL BANK OF
CHICAGO, as Agent and as a Lender
By:
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
EXHIBIT B
TO
AMENDED AND RESTATED CREDIT AGREEMENT
COMMITMENTS
-----------
I. REVOLVING LOAN COMMITMENTS
Amount of Revolving % of Revolving
Lender Loan Commitment Loan Commitment
------ ------------------- ---------------
The First National
Bank of Chicago $20,000,000 100.000000%
TOTAL $20,000,000.00 100.000000%
II. TERM LOAN COMMITMENTS
Amount of Term % of Term
Lender Loan Commitment Loan Commitment
------ ------------------- ---------------
The First National
Bank of Chicago $20,000,000 100.000000%
TOTAL $20,000,000.00 100.000000%
EXHIBIT 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
------------------------------
Pursuant to [Section 4.2] [Section 6.1(A)(iv)] of the Amended and
Restated Credit Agreement dated as of December __, 1997 among PMT Holdings,
Inc., Pacific Motor Transport Company, American International Rail Services,
L.L.C., American International Mechanical Services, L.L.C, ICI Acquisition
Company, Interstate Consolidation, Inc., Interstate Consolidation Service, Inc.,
Intermodal Container Service, Inc., the institutions from time to time party
thereto as lenders (the "Lenders"), and The First National Bank of Chicago, in
its capacity as contractual representative for itself and the other Lenders, the
Borrower, through its __________________________, hereby delivers to the Agent[,
together with the financial statements being delivered to the Agent pursuant to
Section 6.1(A) of the Credit Agreement,] this Compliance Certificate (the
--------------
"Certificate") [for the accounting period from _________, 19__ to ___________,
19__]. Capitalized terms used herein shall have the meanings set forth in the
Credit Agreement. Subsection references herein relate to subsections of the
Credit Agreement.
I. MANDATORY PREPAYMENTS (Section 2.5(B))
--------------
A. Section 2.5(B)(i)(a)
--------------------
(1) State whether upon the consummation of any Asset Sale or
issuance of Equity Interests or debt any Net Cash Proceeds
have arisen. Yes/No
(2) If the answer to question(1) is yes, state the date of and the
nature of the transaction giving rise to the Net Cash Proceeds,
the aggregate principal amount of such Net Cash Proceeds, and
the amount, if required, of any mandatory prepayment on
Schedule A.
----------
B. Section 2.5(B)(i)(b)/1/ The Borrowers' calculation of Excess Cash
--------------------
Flow for the Cash Flow Period ended December 31, ____ is as follows:
Net Income $________
Amortization expense +________
--------------------
/1/ To be included for the Compliance Certificate accompanying the annual
audited financial statements.
I-1
Depreciation +________
Non-cash charges +________
Capital Expenditures -________
Principal payments (including -________
prepayments) in respect of the
Term Loans and other Indebtedness
Net Change in Working Capital +/-________
Cash dividends/redemptions,
Restricted Payments during such period -________
Excess Cash Flow =________
II. FINANCIAL COVENANTS
A. MINIMUM FIXED CHARGE COVERAGE RATIO (Section 6.4(B))
----------------
1. Net Income + taxes + Interest Expense + depreciation
and amortization + Fees + other non-cash charges +
non-recurring expenses - interest income -
extraordinary gains + extraordinary losses ("EBITDA")
+ Rentals - Capital Expenditures
for the period from ____ to _____ $________
2. Interest Expense + Rentals + Taxes + Scheduled amortization
of Term Loans and other Indebtedness of the Borrower
for the period from ____ to ____ $________
3. Fixed Charge Ratio (Ratio of (1) to (2)) __ to 1.0
B. MAXIMUM LEVERAGE RATIO (Section 6.4(C))
----------------
1. Total Debt of the Borrowers $________
2. EBITDA (as determined under item II(A) above) $________
3. Leverage Ratio (Ratio of (1) to (2) __ to 1.0
C. MINIMUM EBITDA (Section 7.4(D)) EBITDA (as determined under item
--------------
II(A) above) $________.
I-2
PMT Holdings, Inc. hereby certifies, through its ____________________,
that the information set forth above is accurate as of _________________, ____,
to the best of such officer's knowledge, after diligent inquiry, and that the
financial statements delivered herewith present fairly in all material respects
the financial position of the Borrowers and their Subsidiaries at the dates
indicated and the results of their operations and their cash flows for the
periods indicated in conformity with Agreement Accounting Principles,
consistently applied.
Dated: _______________, ____
PMT HOLDINGS, INC.
By: ___________________
Name:
Title:
I-3
