EXHIBIT 10.26
EXECUTION COPY
UNDIVIDED ASSIGNMENT AND ASSUMPTION AGREEMENT
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This UNDIVIDED ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated
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as of June 5, 1998, is entered into by and between Pacer International, Inc., a
Delaware corporation (the "Assignor"), and Cross Con Acquisition Corp., a
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Delaware corporation and wholly owned subsidiary of the Assignor (the
"Assignee")
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WHEREAS, on or prior to the date hereof, the Assignor executed and delivered
that certain Stock Purchase Agreement dated as of May 29, 1998 by and among the
Assignor, Cross Con Terminals, Inc., a Delaware corporation ("Terminals"), Cross
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Con Transport, Inc., an Illinois corporation ("Transport"; and together with
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Terminals, the "Companies"), and Xxxxxxx Xxxxxx (the "Seller") (as the same may,
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from time to time, be amended, restated , supplemented or otherwise modified,
the "Stock Purchase Agreement");
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WHEREAS, pursuant to the terms and conditions of the Stock Purchase Agreement,
the Assignor has the right to purchase from the seller, and the seller has
agreed to sell to the Assignor, all of the shares of outstanding capital stock
of the Companies; and
WHEREAS, pursuant to (S)(S) 12.4 of the Stock Purchase Agreement, the Assignor
may assign any or all of its rights and interests under the Stock Purchase
Agreement to one or more of its wholly owned Affiliates (as such term is defined
in the Stock Purchase Agreement) and may designate one or more of its wholly
owned Affiliates to perform its obligations thereunder;
NOW, THEREFORE, in consideration of the covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree as follows:
(a) The Assignor hereby sells, conveys, delivers, assigns and transfers to
the Assignee all of the Assignor's undivided right, title and interest in, to
and under the Stock Purchase Agreement, including, without limitation, the
Assignor's right to purchase from the Seller all of the shares of outstanding
capital stock of the Companies, at the purchase price set forth in the Stock
Purchase Agreement, subject to the terms, conditions and adjustments set forth
therein.
(b) The Assignee hereby acknowledges and agrees to perform all of the
terms, covenants and conditions of the Assignor set forth in the Stock Purchase
Agreement.
(c) The Assignor hereby acknowledges and agrees that, notwithstanding this
Agreement, it will remain primarily liable for all of its duties and obligations
under the Stock Purchase Agreement.
(d) This Agreement shall be binding on the Assignor, the Assignee and their
respective successors and assigns.
(e) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to principles of conflict of
laws.
(f) This Agreement may not be modified or amended in any manner other than
by a written agreement executed by both parties hereto.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
PACER INTERNATIONAL, INC.
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
Executive Vice President and Chief
Executive Officer
CROSS CON ACQUISITION CORP.,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
President, Treasurer and Secretary
