EXHIBIT 10.19
EXECUTION COPY
AMENDMENT NO. 1
TO AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 31, 1998
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
("Amendment") is made as of March 31, 1998 by and among PMT Holdings, Inc., a
Delaware corporation ("Holdings"), Pacific Motor Transport Company, a California
corporation ("Pacific Motor"), American International Rail Services LLC, a
Colorado limited liability company ("AIRS"), American International Mechanical
Services LLC, a Colorado limited liability company ("AIMS"), Interstate
Consolidation, Inc., a California corporation. ("ICI"), Interstate Consolidation
Service, Inc., a California corporation ("ICS"), and Intermodal Container
Service, Inc., a California corporation ("IMCS") (Holdings, Pacific Motor, AIRS,
AIMS, Acquisition Company, ICI, ICS and IMCS, being collectively referred to as
the "Existing Borrowers"), Pacer Integrated Logistics, Inc., a Delaware
corporation ("PIL"), 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 (the "Credit Agreement")
dated as of December 16, 1997. Each defined term used herein and not otherwise
defined herein shall have the meaning given to it in the Credit Agreement.
WITNESSETH
WHEREAS, the Existing Borrowers, ICI Acquisition Company, a Delaware
corporation ("Acquisition Company"), the Lenders and the Agent are parties to
the Credit Agreement;
WHEREAS, Acquisition Company has, subsequent to the execution of the
Credit Agreement, merged into Pacific Motor with Pacific Motor being the
surviving corporation;
WHEREAS, the Existing Borrowers have notified the Lenders and the
Agent of (i) the proposed indirect acquisition (the "Acquisition") by Holdings
of substantially all the assets of Intraco, Inc. (d/b/a ▇▇▇▇▇ & Company) (the
"Target") and (ii) the formation of PIL, a wholly-owned subsidiary of Holdings,
for the purpose of effectuating the Acquisition by means of a merger of the
Target into PIL;
WHEREAS, the Existing 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 PIL as a "Borrower" under the Credit Agreement and make
certain other accommodations; 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
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subject to the satisfaction of the conditions precedent set forth in Section 3
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below, the Credit Agreement is hereby amended as follows:
1.1. The definition of "Borrowers" set forth in Section 1.1 of the
Credit Agreement is hereby amended by inserting the term "PIL," immediately
after the term "Pacific Motor," as and where "Pacific Motor," now appears in
such definition.
1.2. A new definition of the term "PIL" shall be inserted into Section
1.1 of the Credit Agreement in its appropriate alphabetical order and shall read
as follows:
"PIL" means Pacer Integrated Logistics, Inc., a Delaware corporation.
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2. Consent; Limited Waivers. Upon the effectiveness of this Amendment,
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the Lenders hereby consent to the consummation of the Acquisition and waive (a)
the restrictions set forth in Sections 6.3(D), (G) and (P) of the Credit
Agreement solely with respect to the formation of PIL and the Acquisition, (b)
the affirmative covenant of the Borrowers set forth Section 6.2 (K) of the
Credit Agreement solely for the limited purpose of permitting the Borrowers to
use the proceeds of Loans under the Credit Agreement to effectuate the
Acquisition, (c) the Defaults or Unmatured Defaults, if any, arising out of any
breach by the Borrowers of the Sections 6.1 (A)(i), (ii), (iii) or (iv) of the
Credit Agreement prior to and as of the date hereof, and (d) other Defaults or
Unmatured Defaults, if any, which may have occurred prior to the effectiveness
of this Amendment only if and to the extent that, had this Amendment been
effective at the time of such occurrence, the circumstances causing such Default
or Unmatured Default would not then have caused a Default or Unmatured Default.
3. Conditions of Effectiveness. This Amendment shall become effective
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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
Existing Borrowers, PIL and each of the Lenders;
(b) duly executed Revolving Loan Note of PIL;
(c) duly executed original counterparts of a Security Agreement ("PIL
Security Agreement") evidencing the granting of a security interest by PIL
to and in favor of the Agent, for the benefit of the Lenders;
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(d) duly executed original counterparts of a Pledge Agreement (the
"Pledge") evidencing the pledge by Holdings of 100% of the Capital Stock of
PIL to and in favor of the Agent, for the benefit of the Lenders, together
with the stock certificates representing such Capital Stock of PIL and
related stock powers signed in blank;
(e) duly executed Uniform Commercial Code financing statements naming
PIL as debtor and the Agent as Secured Party to be filed with the Secretary
of State of Missouri, Wyandotte County, Missouri Recorder, the Secretary of
State of California and the Secretary of State of Kansas;
(e) Secretary's Certificate of PIL certifying (i) copies of the
resolutions of the Board of Directors (as attached thereto) of PIL
approving PIL's execution and delivery of this Amendment and all other
documents relating hereto, (ii) a copy of the Articles of Incorporation of
PIL (as attached thereto) as true and correct, (iii) a copy of the By-Laws
of PIL (as attached thereto) as true and correct, and (iv) the names,
titles and signatures of the officers of PIL authorized to sign this
Amendment and all other documents relating hereto; and
(f) Secretary's Certificate of Holdings certifying copies of the
resolutions of the Board of Directors (as attached thereto) of Holdings
approving Holding's execution and delivery of the Pledge and the names,
titles and signatures of the officers of Holdings authorized to sign the
Pledge; and
(g) the following certificates:
(1) the Borrowers' Officer's Certificate for the month ended
December 31, 1997, required to accompany the Borrowers' financial
statements for such month ended, all as more fully set forth in
Section 6.1(A)(iv) of the Credit Agreement; and
(2) the Borrowers' Borrowing Base Certificate for the months
ended December 31, 1997 and January 31, 1998, as set forth in Section
6.1(J) of the Credit Agreement.
4. Representations and Warranties of the Company. The Existing Borrowers
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and PIL 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,
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representations and warranties shall be deemed to have been remade as of
the effective date of this Amendment.
5. PIL as Borrower; Reference to the Effect on the Credit Agreement and
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other Loan Documents.
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(a) PIL shall, upon the 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. PIL 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. PIL's notice address under the Credit Agreement shall be as set
forth on the signature page hereof.
(b) 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.
(c) 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.
(d) 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.
6. Further Assurances. (a) The Borrowers shall furnish the Agent their
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audited financial statements for the year ended December 31, 1997, as set forth
in Section 6.1(A)(iii) of the Credit Agreement prior to May 15, 1998, the
failure of such delivery being deemed and shall be considered a Default under
and pursuant to the Credit Agreement, as hereby amended.
(b) Within five days of the effectiveness hereof, the Borrowers shall
furnish the Agent an opinion of ▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP, counsel to the
Existing Borrowers and PIL, as to the due authorization, enforceability and
validity of the documents executed and delivered pursuant to Section 3 hereof by
Holdings and PIL, the failure of such delivery being deemed and shall be
considered a Default under and pursuant to the Credit Agreement, as hereby
amended.
(c) Within 60 days of a request by any Lender, the Borrowers shall furnish
the Lenders a written opinion(s) of Missouri and/or Kansas counsel as to the
perfection of liens granted by PIL pursuant to the PIL Security Agreement.
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7. Costs and Expenses. The Borrowers agree to pay all reasonable costs,
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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.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS)
OF THE STATE OF ILLINOIS.
9. Headings. Section headings in this Amendment are included herein for
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convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
10. Counterparts. This Amendment may be executed by one or more of the
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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.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
PACER INTEGRATED LOGISTICS, INC.
By:___________________________
Name:
Title:
Address: c/o Pacific Motor Transport
Company, Pacer Division
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PMT HOLDINGS, INC.
By:___________________________
Name:
Title:
PACIFIC MOTOR TRANSPORT COMPANY
By:___________________________
Name:
Title:
AMERICAN INTERNATIONAL RAIL
SERVICES LLC
By: Pacific Motor Transport Company
Its: Manager
By:___________________________
Name:
Title:
AMERICAN INTERNATIONAL
MECHANICAL SERVICES 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:
THE FIRST NATIONAL BANK OF
CHICAGO, as Agent and as a Lender
By:___________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
