Exhibit 10.3
EXECUTION COPY
AMENDMENT TO
GUARANTY
THIS AMENDMENT TO
GUARANTY (this “
Amendment ”) is dated as of August 28, 2009 and
is entered into by and among each Guarantor named in the signature
pages hereof (each a “ Guarantor ” and,
collectively, the “ Guarantors ”) and Bank of
America, N.A., as Administrative Agent (in such capacity, the
“ Administrative Agent ”), acting with the
consent of the Required Lenders. Capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement (as defined
below).
WHEREAS, each of the Guarantors entered into that certain
Guaranty (as in effect on the date hereof immediately before giving
effect to the Amended and Restated Credit Agreement referred to
below, the “ Original Guaranty ”) dated as of
April 5, 2007;
WHEREAS, Pacer International, Inc.
(“ Pacer ”), the other borrowers party thereto,
the lenders party thereto, the Swing Line Lender and L/C Issuers
party thereto, and the Administrative Agent have entered into that
certain Amended and Restated Credit Agreement dated as of the date
hereof (the “ Amended and Restated Credit Agreement
”) amending and restating the Credit Agreement dated as of
April 5, 2007, among Pacer, the lenders party thereto, the L/C
Issuers, the Swing Line Lender and the Administrative Agent, as
amended by that certain First Amendment and Waiver Agreement dated
as of June 29, 2009 (as amended, amended and restated,
renewed, extended, supplemented or otherwise modified from time to
time, the “ Credit Agreement ”); and
WHEREAS, it is a condition precedent to the effectiveness
of the Amended and Restated Credit Agreement that each Guarantor
amend the Original Guaranty as provided for herein.
NOW, THEREFORE
, in consideration of the premises
and the agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
SECTION I. AMENDMENTS TO ORIGINAL
GUARANTY
1.1 Amendments to the
Recitals .
(a) The first paragraph of the
Original Guaranty is hereby amended by deleting the words
“the Swap Obligation Providers and the FX/Cash Management
Obligation Providers” and replacing such words with the
following:
“the Lenders and any of their
respective Affiliates (or any Lender (or an Affiliate of such a
Lender) at the time any Bank Product Obligations were incurred but
has ceased to be a Lender (or whose Affiliate has ceased to be a
Lender) under the Credit Agreement) providing any Bank Product
(“ Bank Product Providers ”)”.
(b) The second paragraph of the
Original Guaranty is hereby amended by deleting the parenthetical
“(the “ Borrower ”)” and replacing
it with “(“ Pacer ”)”.
(c) The third paragraph of the
Original Guaranty is hereby amended by deleting such paragraph in
its entirety and replacing it with the following:
“It is a condition precedent
to the Borrowings, to the issuances of Letters of Credit under the
Credit Agreement and to the extension of Bank Products that each
Guarantor guarantee the indebtedness and other obligations of the
Borrowers to the Guaranteed Parties under or in connection with the
Credit Agreement and arising under any agreement relating to any
Bank Product as set forth herein. Each Guarantor, as a Borrower or
as a Subsidiary of a Borrower, will derive substantial direct and
indirect benefits from the making of the Loans to, and issuances of
Letters of Credit for the account of, the Borrowers pursuant to the
Credit Agreement and from the agreements relating to the Bank
Products (which benefits are hereby acknowledged by each
Guarantor).”
(d) The fourth paragraph of the
Original Guaranty is hereby amended by deleting the words “to
induce the Swap Obligation Providers to enter into the Swap
Contracts and to induce the FX/Cash Management Obligation Providers
to enter into the FX/Cash Management Agreements” and
replacing such words with the following:
“and to induce the applicable
Lenders (or their respective Affiliates) to enter into any
agreement relating to any Bank Products”.
1.2 Amendment to
Section 1: Definitions; Interpretation .
(a) Section 1 of the Original
Guaranty is hereby amended by deleting the definitions of
“FX/Cash Management Agreement” and “Swap
Contract” in their entirety.
(b) Section 1 of the Original
Guaranty is hereby amended by deleting the definition of
“Guaranteed Parties” in its entirety and replacing it
with the following new definition:
“ Guaranteed Parties
” means the Administrative Agent, the Lenders, the L/C
Issuers, the Swing Line Lender and, subject to Bank Product
Obligations being deemed “Secured Obligations” in
accordance with the terms of the Credit Agreement, providers of
Bank Products, including, without limitation, the FX/Cash
Management Obligation Providers and the Swap Obligation
Providers.”
1.3 Amendment to
Section 2: Guaranty . Section 2 of the Original Guaranty is
hereby amended by:
(a) deleting the first sentence of
clause (a) thereto in its entirety and replacing it with the
following:
“Each Guarantor hereby
unconditionally and irrevocably guarantees to the Guaranteed
Parties, and their respective successors, endorsees, transferees
and assigns, the full and prompt payment when due (whether at
stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise) and performance of the indebtedness,
liabilities and other obligations of the Borrowers (i) to the
Guaranteed Parties under or in connection with the Credit
Agreement, the Notes and the other Loan Documents, including all
unpaid principal of the
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Loans, all amounts owing in respect
of the L/C Obligations, all interest accrued thereon, all fees due
under the Credit Agreement and all other amounts payable by the
Borrowers to the Guaranteed Parties thereunder or in connection
therewith and (ii) to the Guaranteed Parties arising under any
agreement relating to any Bank Product.”; and
(b) replacing the words “the
Borrower” and the third sentence of clause (a) thereto
with the words “the Borrowers”.
1.4 Amendment to
Section 3: Liability of Guarantors .
Section 3 of the Original
Guaranty is hereby amended by replacing the words “the
Borrower” in each of clause (i), (iii), (v)(A), (v)(B),
(v)(C), (v)(E), (v)(G), and (v)(J) thereof with the words
“any Borrower”.
1.5 Amendment to
Section 4: Consents of Guarantors .
Section 4 of the Original
Guaranty is hereby amended by:
(a) replacing the words “the
Borrower’s” in clause (iii) thereof with the words
“ any Borrower’s”; and
(b) replacing the words “the
Borrower” in each of clause (vi) and clause
(vii) thereof with the words “any
Borrower”.
1.6 Amendment to
Section 5(a): Certain Waivers . Section 5(a) of the Original Guaranty is
hereby amended by:
(a) replacing each occurrence of the
words “the Borrower” in clause (i) thereof with
the words “ any Borrower”; and
(b) replacing the words “the
Borrower” in each of clause (iii) and clause
(vi) thereof with the words “any
Borrower”.
1.7 Amendment to
Section 5(b): Additional Waivers . Section 5(b) of the Original Guaranty is
hereby amended by replacing the words “the Borrower”
therein with the words “any Borrower”.
1.8 Amendment to
Section 5(c): Independent Obligations .
Section 5(c) of the Original
Guaranty is hereby amended by:
(a) replacing the first occurrence
of the words “the Borrower” therein with the words
“the Borrowers”; and
(b) replacing the second and third
occurrences of the words “the Borrower” therein with
the words “any Borrower”.
1.9 Amendment to
Section 5(d): Financial Condition of Borrower .
Section 5(d) of the Original
Guaranty is hereby amended by replacing the word
“Borrower” in the section heading thereof with the
words “the Borrowers”.
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1.10 Amendment to Section 6:
Subrogation . Section 6 of the Original Guaranty is
hereby amended by replacing the words “the Borrower”
therein with the words “the Borrowers”.
1.11 Amendment to
Section 7(a): Subordination to Payment of Guaranteed
Obligations . Section 7(a) of the Original Guaranty is
hereby amended by:
(a) replacing the first occurrence
of the words “the Borrower” therein with the words
“each Borrower”; and
(b) replacing the second and third
occurrences of the words “the Borrower” therein with
the words “such Borrower”
1.12 Amendment to
Section 7(b): No Payments . Section 7(b) of the Original Guaranty is
hereby amended by replacing each occurrence of the words “the
Borrower” therein with the words “any
Borrower”.
1.13 Amendment to
Section 7(c): Subordination of Remedies .
Section 7(c) of the Original
Guaranty is hereby amended by replacing the words “the
Borrower” in each of clause (ii) and clause
(iii) thereof with the words “any
Borrower”.
1.14 Amendment to
Section 7(d): Subordination Upon Any Distribution of Assets of
the Borrower . Section 7(d) of the Original Guaranty is
hereby amended by:
(a) replacing the words “the
Borrower” in the section heading thereto with the words
“any Borrower”;
(b) replacing the first occurrence
of the words “the Borrower” therein with the words
“any Borrower”; and
(c) replacing the second occurrence
of the words “the Borrower” therein with the words
“any such Borrower”.
1.15 Amendment to
Section 7(e): Authorization by Administrative Agent
. Section 7(e) of
the Original Guaranty is hereby amended by replacing the words
“the Borrower” therein with the words “any
Borrower”.
1.16 Amendment to
Section 9: Payments . Section 9 of the Original Guaranty is
hereby amended by:
(a) replacing the first occurrence
of the words “the Borrower” in clause (a) thereof
with the words “any Borrower”;
(b) replacing the second and third
occurrences of the words “the Borrower” in clause
(a) thereof with the words “such
Borrower”;
(c) replacing the words “each
Swap Obligation Provider, each FX/Cash Management Obligation
Provider,” in clause (g)(ii) thereof with the
following:
“each Bank Product
Provider”; and
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(d) replacing the words “the
Swap Obligation Providers, the FX/Cash Management Obligation
Providers” in the last sentence of clause (g) thereof
with the words “the Bank Product Providers”.
1.17 Amendment to
Section 10: Representations and Warranties .
Section 10 of the Original
Guaranty is hereby amended by replacing each occurrence of the
words “the Borrower” in clause (h) thereof with
the words “the Borrowers”.
1.18 Amendment to
Section 12: Affirmative Covenants .
Section 12 of the Original
Guaranty is hereby amended by:
(a) replacing the words “any
FX/Cash Management Agreement or Swap Contract” therein with
the words
