FOURTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT
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FOURTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of May 14, 2002, among PACER INTERNATIONAL, INC. (f/k/a
LAND TRANSPORT SERVICES, INC.), a Tennessee corporation (the "Borrower"), the
lending institutions party to the Credit Agreement referred to below (the
"Banks"), CREDIT SUISSE FIRST BOSTON, as Documentation Agent (in such capacity,
the "Documentation Agent"), XXXXXX XXXXXXX SENIOR FUNDING, INC., as Syndication
Agent (in such capacity, the "Syndication Agent"), DEUTSCHE BANK TRUST COMPANY
AMERICAS (f/k/a BANKERS TRUST COMPANY), as Administrative Agent (in such
capacity, the "Administrative Agent" and, together with the Documentation Agent
and Syndication Agent, each, an "Agent" and, collectively, the "Agents"). Unless
otherwise indicated, all capitalized terms used herein and not otherwise defined
shall have the respective meanings provided such terms in the Credit Agreement
referred to below.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Banks and the Agents are parties to
a Credit Agreement, dated as of May 28, 1999 (as amended, modified or
supplemented to, but not including, the date hereof, the "Credit Agreement");
WHEREAS, the Borrower has requested certain amendments and a
certain consent to the Credit Agreement, in each case as described below; and
WHEREAS, subject to the terms and conditions of this
Amendment, the parties hereto wish to amend the Credit Agreement, and the Banks
wish to grant a certain consent to Credit Agreement, in each case as herein
provided;
NOW, THEREFORE, it is agreed:
I. Amendments and Consent to the Credit Agreement.
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1. Section 9.05 of the Credit Agreement is hereby amended by
(i) inserting the word "other" immediately prior to the second reference to the
word "Person" appearing in said Section and (ii) deleting clause (q) of said
Section in its entirety and inserting the following new clause (q) in lieu
thereof:
"(q) (i) the Borrower and any Subsidiary Guarantor may make
cash equity contributions to any (other) Subsidiary Guarantor which
is a direct Wholly-Owned Subsidiary of the Person making such
contribution, (ii) any Subsidiary Guarantor may make non-cash equity
contributions to any (other) Subsidiary Guarantor which is a direct
Wholly-Owned Subsidiary of the Subsidiary Guarantor making such
contribution,
so long as any security interest granted to the Collateral Agent for
the benefit of the Secured Creditors pursuant to the Security
Documents in any assets so contributed shall remain in full force and
effect and perfected (to at least the same extent as in effect
immediately prior to such contribution) and all actions required to
maintain said perfected status have been taken and (iii) the Borrower
may contribute to Pacer Logistics any Pacer Logistics Preferred Stock
received by it in exchange for Borrower Common Stock in connection
with any exchange of Pacer Logistics Preferred Stock for Borrower
Common Stock permitted hereunder, so long as all shares of Pacer
Logistics Preferred Stock so contributed are promptly cancelled upon
receipt thereof by Pacer Logistics.".
2. Section 9.06 of the Credit Agreement is hereby amended by
(i) inserting the text "or other equityholders" immediately after the word
"stockholders" appearing in the preamble to said Section, (ii) deleting the text
"(other than dividends payable solely in common stock of the Borrower or any
such Subsidiary, as the case may be)" appearing in the preamble of said Section
and (iii) inserting the text ", except to the extent paid by such Person to its
shareholders with the common stock of such Person," immediately prior to the
text ""Dividends)" appearing in said Section.
3. Notwithstanding anything to the contrary contained in
Section 9 of the Credit Agreement, the Banks hereby consent to the entering
into, and the consummation of the exchange transactions contemplated by, (i)
that certain Stock Exchange Agreement and Plan of Reorganization, to be entered
into by the Borrower, Pacer Logistics, Xxxxxx X. Xxxxx, Xxxxx Xxxxxx, Xxxxxx X.
Xxxxx, Xxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxx, Xxxx X. Xxxx and Xxxxxxx X. Xxxxxx,
in the form attached as Annex A hereto (with such modifications thereto as may
be acceptable to the Administrative Agent) and (ii) that certain Plan of
Reorganization, to be entered into by the Borrower and Coyote Acquisition LLC,
in the form attached as Annex B hereto (with such modifications thereto as may
be acceptable to the Administrative Agent).
II. Miscellaneous Provisions.
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1. In order to induce the Banks to enter into this Amendment,
the Borrower hereby represents and warrants that (x) no Default or Event of
Default exists as of the Fourth Amendment Effective Date, both before and after
giving effect to this Amendment and (y) all of the representations and
warranties contained in the Credit Agreement or the other Credit Documents are
true and correct in all material respects on the Fourth Amendment Effective Date
both before and after giving effect to this Amendment, with the same effect as
though such representations and warranties had been made on and as of the Fourth
Amendment Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all material
respects as of such specific date).
2. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed
and delivered shall be an original, but all of which shall together constitute
one and the same instrument. A complete set of counterparts shall be lodged with
the Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the
"Fourth Amendment Effective Date") when the Borrower and the Banks constituting
the Required Banks shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxx Xxxxxx (facsimile number 212-354-8113).
6. From and after the Fourth Amendment Effective Date, all
references in the Credit Agreement and each of the other Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
PACER INTERNATIONAL, INC. (f/k/a Land
Transport Services, Inc.)
By: /S/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: E.V.P. & C.F.D.
DEUTSCHE BANK TRUST COMPANY AMERICAS
(f/k/a Bankers Trust Company),
Individually and as Administrative Agent
By: /S/ Xxxxxxxxxx Xxxxxx
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Name: Xxxxxxxxxx Xxxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
Individually and as
Syndication Agent
By: /S/ Xxxxxxx X. X'xxxxx
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Name: Xxxxxxx X. X'xxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
Individually and as
Documentation Agent
By:
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Name:
Title:
By:
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Name
Title:
FLEET NATIONAL BANK
By: /S/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Director
BANK UNITED
By:
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Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
By: /S/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: First Vice President
By: /S/
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Name:
Title: Director
BANK ONE, NA (f/k/a The First National
Bank of Chicago)
By: /S/ Xxxxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
CREDIT LYONNAIS NEW YORK BRANCH
By: /S/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
WACHOVIA BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxx Xx.
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Name: Xxxx X. Xxxxxx Xx.
Title:Senior Vice President
XXXXXX FINANCIAL
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title:Duly Authorized Signatory
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
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Name:
Title:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By: /s/ B. Xxxx Xxxxx
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Name: B. Xxxx Xxxxx
Title:Vice President
TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title:Senior Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ X. Xxxxxxx Bloone
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Name: X. Xxxxxxx Bloone
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title:Senior Vice President
