Exhibit 10.2
GUARANTY
THIS GUARANTY (this “
Guaranty ”), dated as of April 5, 2007, is made
by each Guarantor named in the signature pages hereof (each a
“ Guarantor ” and, collectively, the “
Guarantors ”), in favor of the Lenders party to the
Credit Agreement referred to below, the L/C Issuers, the Swing Line
Lender, the Swap Obligation Providers and the FX/Cash Management
Obligation Providers referred to below, and Bank of America, N.A.,
as Administrative Agent (in such capacity, the “
Administrative Agent ”).
Pacer International, Inc., a
Tennessee corporation (the “ Borrower ”), the
Lenders from time to time party thereto (each a “
Lender ” and, collectively, the “ Lenders
”), the L/C Issuers, the Swing Line Lender and the
Administrative Agent are parties to a Credit Agreement dated as of
April 5, 2007 (as amended, modified, renewed or extended
from time to time, the “ Credit Agreement
”).
It is a condition precedent to the
Borrowings, to the issuances of Letters of Credit under the Credit
Agreement, to the Swap Contracts and to the FX/Cash Management
Agreements that each Guarantor guarantee the indebtedness and other
obligations of the Borrower to the Guaranteed Parties under or in
connection with the Credit Agreement, the Swap Contracts and the
FX/Cash Management Agreements as set forth herein. Each Guarantor,
as a Subsidiary of the 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 Borrower pursuant to the
Credit Agreement, and from the Swap Contracts and FX/Cash
Management Agreements (which benefits are hereby acknowledged by
each Guarantor).
Accordingly, to induce the
Administrative Agent, the L/C Issuers, the Swing Line Lender and
the Lenders to enter into the Credit Agreement, 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 in consideration thereof, each
Guarantor hereby agrees as follows:
SECTION 1 Definitions;
Interpretation .
(a) Terms Defined in Credit
Agreement . All capitalized terms used in this Guaranty
(including in the recitals hereof) and not otherwise defined herein
shall have the meanings assigned to them in the Credit
Agreement.
(b) Certain Defined Terms .
As used in this Guaranty (including in the recitals hereof), the
following terms shall have the following meanings:
“ Bankruptcy Code
” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
§101, et seq .).
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“ Excluded Taxes
” means, with respect to any Guaranteed Party or any other
recipient of any payment to be made by or on account of any
Guaranteed Obligation hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), or
similar Taxes, by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, or
(b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which any
Guarantor is located.
“ FX/Cash Management
Agreement ” means any agreement to provide foreign
exchange and cash management services (including treasury,
depository, overdraft, credit or debit card, electronic funds
transfer and other cash management arrangements) entered into
between the Borrower or any Subsidiary thereof and any FX/Cash
Management Obligation Provider.
“ Guaranteed
Obligations ” has the meaning set forth in
Section 2 .
“ Guaranteed Parties
” means the Administrative Agent, the Lenders, the L/C
Issuers, the Swing Line Lender, the Swap Obligation Providers and
the FX/Cash Management Obligation Providers.
“ Guarantor Documents
” means this Guaranty and all other certificates, documents,
agreements and instruments delivered to any Guaranteed Party under
or in connection with this Guaranty and the Loan
Documents.
“ Indemnified Taxes
” means Taxes other than Excluded Taxes.
“ Insolvency Proceeding
” means, with respect to any Person, (a) any case,
action or proceeding with respect to such Person before any court
or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment
for the benefit of creditors, composition, marshalling of assets
for creditors, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its creditors; in
either case undertaken under Debtor Relief Laws.
“ Other Taxes ”
means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from
any payment made hereunder or under any other Guarantor Document or
from the execution, delivery or enforcement of, or otherwise with
respect to, this Guaranty or any other Guarantor
Document.
“ Subordinated Debt
” has the meaning set forth in Section 7
.
“ Swap Contract ”
means any Swap Contracts entered into between the Borrower or any
Subsidiary thereof and any Swap Obligation Provider.
“ Taxes ” means
all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
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(c) Interpretation . The
rules of interpretation set forth in Sections 1.02 to
1.05 of the Credit Agreement shall be applicable to this
Guaranty and are incorporated herein by this reference.
SECTION 2 Guaranty.
(a) Guaranty . 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 Borrower (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 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 Borrower
to the Guaranteed Parties thereunder or in connection therewith,
(ii) to the Swap Obligation Providers arising under any Swap
Contract, including obligations and liabilities arising in
connection with or as a result of early termination of any Swap
Contract, whether or not occurring as a result of a default
thereunder, and (iii) to the FX/Cash Management Obligation
Providers arising under any FX/Cash Management Agreement. The terms
“indebtedness,” “liabilities” and
“obligations” are used herein in their most
comprehensive sense and include any and all advances, debts,
obligations and liabilities, now existing or hereafter arising,
whether voluntary or involuntary and whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or
undetermined, and whether recovery upon such indebtedness,
liabilities and obligations may be or hereafter become
unenforceable or shall be an allowed or disallowed claim under any
Debtor Relief Law, and including interest that accrues after the
commencement by or against any Loan Party or any Affiliate thereof
of any Insolvency Proceeding naming such Person as the debtor in
such proceeding. The foregoing indebtedness, liabilities and other
obligations of the Borrower, and all other indebtedness,
liabilities and obligations to be paid or performed by the
Guarantors in connection with this Guaranty (including any and all
amounts due under Section 15 ), shall hereinafter be
collectively referred to as the “ Guaranteed
Obligations .”
(b) Limitation of Guaranty .
To the extent that any court of competent jurisdiction shall impose
by final judgment under applicable law (including the California
Uniform Fraudulent Transfer Act and §§544 and 548 of the
Bankruptcy Code) any limitations on the amount of any
Guarantor’s liability with respect to the Guaranteed
Obligations which any Guaranteed Party can enforce under this
Guaranty, the Guaranteed Parties by their acceptance hereof accept
such limitation on the amount of such Guarantor’s liability
hereunder to the extent needed to make this Guaranty and the
Guarantor Documents fully enforceable and nonavoidable.
SECTION 3 Liability of
Guarantors . The liability of the Guarantors under this
Guaranty shall be irrevocable, absolute, independent and
unconditional, and shall not be affected by any circumstance which
might constitute a discharge of a surety or guarantor other than
the indefeasible payment and performance in full of all Guaranteed
Obligations. In furtherance of the foregoing and without limiting
the generality thereof, each Guarantor agrees as
follows:
(i) such Guarantor’s liability
hereunder shall be the immediate, direct, and primary obligation of
such Guarantor and shall not be contingent upon any Guaranteed
Party’s exercise or enforcement of any remedy it may have
against the Borrower or any other Person, or against any
Collateral;
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(ii) this Guaranty is a guaranty of
payment when due and not merely of collectibility;
(iii) the Guaranteed Parties may
enforce this Guaranty upon the occurrence and during the
continuance of an Event of Default notwithstanding the existence of
any dispute between any of the Guaranteed Parties and the Borrower
with respect to the existence of such Event of Default;
(iv) such Guarantor’s payment
of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge such Guarantor’s
liability for any portion of the Guaranteed Obligations remaining
unsatisfied; and
(v) such Guarantor’s liability
with respect to the Guaranteed Obligations shall remain in full
force and effect without regard to, and shall not be impaired or
affected by, nor shall such Guarantor be exonerated or discharged
by, any of the following events:
(A) any Insolvency Proceeding with
respect to the Borrower, such Guarantor, any other Loan Party or
any other Person;
(B) any limitation, discharge, or
cessation of the liability of the Borrower, such Guarantor, any
other Loan Party or any other Person for any Guaranteed Obligations
due to any statute, regulation or rule of law, or any invalidity or
unenforceability in whole or in part of any of the Guaranteed
Obligations or the Loan Documents;
(C) any merger, acquisition,
consolidation or change in structure of the Borrower, such
Guarantor or any other Loan Party or Person, or any sale, lease,
transfer or other disposition of any or all of the assets or shares
of the Borrower, such Guarantor, any other Loan Party or other
Person;
(D) any assignment or other
transfer, in whole or in part, of any Guaranteed Party’s
interests in and rights under this Guaranty or the other Loan
Documents, including any Guaranteed Party’s right to receive
payment of the Guaranteed Obligations, or any assignment or other
transfer, in whole or in part, of any Guaranteed Party’s
interests in and to any of the Collateral;
(E) any claim, defense, counterclaim
or setoff, other than that of prior performance, that the Borrower,
such Guarantor, any other Loan Party or other Person may have or
assert, including any defense of incapacity or lack of corporate or
other authority to execute any of the Loan Documents;
(F) any Guaranteed Party’s
amendment, modification, renewal, extension, cancellation or
surrender of any Loan Document, any Guaranteed Obligations, or any
Collateral, or any Guaranteed Party’s exchange, release, or
waiver of any Collateral;
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(G) any Guaranteed Party’s
exercise or nonexercise of any power, right or remedy with respect
to any of the Collateral, including any Guaranteed Party’s
compromise, release, settlement or waiver with or of the Borrower,
any other Loan Party or any other Person;
(H) any Guaranteed Party’s
vote, claim, distribution, election, acceptance, action or inaction
in any Insolvency Proceeding related to the Guaranteed
Obligations;
(I) any impairment or invalidity of
any of the Collateral or any other collateral securing any of the
Guaranteed Obligations or any failure to perfect any of the Liens
of the Guaranteed Parties thereon or therein; and
(J) any other guaranty, whether by
such Guarantor or any other Person, of all or any part of the
Guaranteed Obligations or any other indebtedness, obligations or
liabilities of the Borrower to any Guaranteed Party.
SECTION 4 Consents of
Guarantors . Each Guarantor hereby unconditionally consents and
agrees that, without notice to or further assent from such
Guarantor:
(i) the principal amount of the
Guaranteed Obligations may be increased or decreased and additional
Obligations of the Loan Parties under the Loan Documents may be
incurred, by one or more amendments, modifications, renewals or
extensions of any Loan Document or otherwise;
(ii) the time, manner, place or
terms of any payment under any Loan Document may be extended or
changed, including by an increase or decrease in the interest rate
on any Guaranteed Obligation or any fee or other amount payable
under such Loan Document, by an amendment, modification or renewal
of any Loan Document or otherwise;
(iii) the time for the
Borrower’s (or any other Person’s) performance of or
compliance with any term, covenant or agreement on its part to be
performed or observed under any Loan Document may be extended, or
such performance or compliance waived, or failure in or departure
from such performance or compliance consented to, all in such
manner and upon such terms as the Guaranteed Parties may deem
proper;
(iv) any Guaranteed Party may
discharge or release, in whole or in part, any other Loan Party or
any other Person liable for the payment and performance of all or
any part of the Guaranteed Obligations, and may permit or consent
to any such action or any result of such action, and shall not be
obligated to demand or enforce payment upon any of the Collateral
or any other collateral, nor shall any Guaranteed Party be liable
to the Guarantors for any failure to collect or enforce payment or
performance of the Guaranteed Obligations from any Person or to
realize on the Collateral or other collateral therefor;
(v) in addition to the Collateral,
the Guaranteed Parties may take and hold other security (legal or
equitable) of any kind, at any time, as collateral for the
Guaranteed Obligations, and may, from time to time, in whole or in
part, exchange, sell, surrender, release, subordinate, modify,
waive, rescind, compromise or extend such security and may permit
or consent to any such action or the result of any such action, and
may apply such security and direct the order or manner of sale
thereof;
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(vi) the Guaranteed Parties may
request and accept other guaranties of the Guaranteed Obligations
and any other indebtedness, obligations or liabilities of the
Borrower to any Guaranteed Party and may, from time to time, in
whole or in part, surrender, release, subordinate, modify, waive,
rescind, compromise or extend any such guaranty and may permit or
consent to any such action or the result of any such action;
and
(vii) the Guaranteed Parties may
exercise, or waive or otherwise refrain from exercising, any other
right, remedy, power or privilege (including the right to
accelerate the maturity of any Loan and any power of sale) granted
by any Loan Document or other security document or agreement, or
otherwise available to any Guaranteed Party, with respect to the
Guaranteed Obligations or any of the Collateral, even if the
exercise of such right, remedy, power or privilege affects or
eliminates any right of subrogation or any other right of the
Guarantors against the Borrower;
all as the Guaranteed Parties may
deem advisable, and all without impairing, abridging, releasing or
affecting this Guaranty.
SECTION 5 Guarantor Waivers
.
(a) Certain Waivers . Each
Guarantor waives and agrees not to assert:
(i) any right to require any
Guaranteed Party to marshal assets in favor of the Borrower, such
Guarantor, any other Loan Party or any other Person, to proceed
against the Borrower, any other Loan Party or any other Person, to
proceed against or exhaust any of the Collateral, to give notice of
the terms, time and place of any public or private sale of personal
property security constituting the Collateral or other collateral
for the Guaranteed Obligations or comply with any other provisions
of §9611 of the New York UCC (or any equivalent provision of
any other applicable law) or to pursue any other right, remedy,
power or privilege of any Guaranteed Party whatsoever;
(ii) the defense of the statute of
limitations in any action hereunder or for the collection or
performance of the Guaranteed Obligations;
(iii) any defense arising by reason
of any lack of corporate or other authority or any other defense of
the Borrower, such Guarantor or any other Person;
(iv) any defense based upon any
Guaranteed Party’s errors or omissions in the administration
of the Guaranteed Obligations;
(v) any rights to set-offs and
counterclaims;
(vi) any defense based upon an
election of remedies (including, if available, an election to
proceed by nonjudicial foreclosure) which destroys or impairs the
subrogation rights of such Guarantor or the right of such Guarantor
to proceed against the Borrower or any other obligor of the
Guaranteed Obligations for reimbursement; and
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(vii) without limiting the
generality of the foregoing, to the fullest extent permitted by
law, any defenses or benefits that may be derived from or afforded
by applicable law limiting the liability of or exonerating
guarantors or sureties, or which may conflict with the terms of
this Guaranty, including any rights and defenses which are or may
become available to each Guarantor by reason of California Civil
Code §§2787 through 2855, 2899 and 3433. As provided
below, this Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York. The foregoing
California Civil Code waivers are included solely out of an
abundance of caution, and shall not be construed to mean that any
of the above referenced provisions of California law are in any way
applicable to this Guaranty or the Guaranteed
Obligations.
(b) Additional Waivers . Each
Guarantor waives any and all notice of the acceptance of this
Guaranty, and any and all notice of the creation, renewal,
modification, extension or accrual of the Guaranteed Obligations,
or the reliance by the Guaranteed Parties upon this Guaranty, or
the exercise of any right, power or privilege hereunder. The
Guaranteed Obligations shall conclusively be deemed to have been
created, contracted, incurred and permitted to exist in reliance
upon this Guaranty. Each Guarantor waives promptness, diligence,
presentment, protest, demand for payment, notice of default,
dishonor or nonpayment and all other notices to or upon the
Borrower, such Guarantor or any other Person with respect to the
Guaranteed Obligations.
(c) Independent Obligations .
The obligations of each Guarantor hereunder are independent of and
separate from the obligations of the Borrower and any other Loan
Party and upon the occurrence and during the continuance of any
Event of Default, a separate action or actions may be brought
against such Guarantor, whether or not the Borrower or any such
other Loan Party is joined therein or a separate action or actions
are brought against the Borrower or any such other Loan
Party.
(d) Financial Condition of
Borrower . No Guarantor shall have any right to require any
Guaranteed Party to obtain or disclose any information with respect
to: (i) the financial condition or character of any Loan Party
or the ability of any Loan Party to pay and perform the Guaranteed
Obligations; (ii) the Guaranteed Obligations; (iii) the
Collateral; (iv) the existence or nonexistence of any other
guarantees of all or any part of the Guaranteed Obligations;
(v) any action or inaction on the part of any Guaranteed Party
or any other Person; or (vi) any other matter, fact or
occurrence whatsoever.
SECTION 6 Subrogation . Until
the Guaranteed Obligations shall be satisfied in full and the
Commitments shall be terminated, no Guarantor shall have, and no
Guarantor shall directly or indirectly exercise, (i) any
rights that it may acquire by way of subrogation under this
Guaranty, by any payment hereunder or otherwise, (ii) any
rights of contribution, indemnification, reimbursement or similar
suretyship claims arising out of this Guaranty or (iii) any
other right which it might otherwise have or acquire (in any way
whatsoever) which could entitle it at any time to share or
participate in any right, remedy or security of any Guaranteed
Party as against the Borrower or other Loan Parties, whether in
connection with this Guaranty, any of the other Loan Documents or
otherwise. If any amount shall be paid to any Guarantor on account
of the foregoing rights at any time when all the Guaranteed
Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the
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Guaranteed Parties and shall forthwith be paid
to the Administrative Agent to be credited and applied to the
Guaranteed Obligations, whether matured or unmatured, in accordance
with the terms of the Loan Documents.
SECTION 7 Subordination
.
(a) Subordination to Payment of
Guaranteed Obligations . All payments on account of all
indebtedness, liabilities and other obligations of the Borrower to
each Guarantor, whether created under, arising out of or in
connection with any documents or instruments evidencing any credit
extensions to Borrower or otherwise, including all principal on any
such credit extensions, all interest accrued thereon, all fees and
all other amounts payable by the Borrower to such Guarantor in
connection therewith, whether now existing or hereafter arising,
and whether due or to become due, absolute or contingent,
liquidated or unliquidated, determined or undetermined (the “
Subordinated Debt ”) shall be subject, subordinate and
junior in right of payment and exercise of remedies, to the extent
and in the manner set forth herein, to the prior payment in full in
cash or cash equivalents of the Guaranteed Obligations.
(b) No Payments . As long as
any of the Guaranteed Obligations shall remain outstanding and
unpaid, no Guarantor shall accept or receive any payment or
distribution by or on behalf of the Borrower, directly or
indirectly, of assets of the Borrower of any kind or character,
whether in cash, property or securities, including on account of
the purchase, redemption or other acquisition of Subordinated Debt,
as a result of any collection, sale or other disposition of
collateral, or by setoff, exchange or in any other manner, for or
on account of the Subordinated Debt (“ Subordinated Debt
Payments ”), except that if no Event of Default exists, a
Guarantor shall be entitled to accept and receive payments and
other distributions of any kind on or in respect of the
Subordinated Debt, in each case to the extent permitted under
Article VII of the Credit Agreement. During the
existence of an Event of Default (or if any Event of Default would
exist immediately after the making of a Subordinated Debt Payment),
and until such Event of Default is cured or waived, such Guarantor
shall not make, accept or receive any Subordinated Debt Payment. In
the event that, notwithstanding the provisions of this
Section 7 , any Subordinated Debt Payments shall be
received in contravention of this Section 7 by any
Guarantor before all Guaranteed Obligations are paid in full in
cash or cash equivalents, such Subordinated Debt Payments shall be
held in trust for the benefit of the Guaranteed Parties and shall
be paid over or delivered to the Administrative Agent for
application to the payment in full in cash or cash equivalents of
all Guaranteed Obligations remaining unpaid to the extent necessary
to give effect to this Section 7 , after giving effect
to any concurrent payments or distributions to any Guaranteed Party
in respect of the Guaranteed Obligations.
(c) Subordination of Remedies
. As long as any Guaranteed Obligations shall remain outstanding
and unpaid, no Guarantor shall, without the prior written consent
of the Administrative Agent:
(i) accelerate, make demand or
otherwise make due and payable prior to the original stated
maturity thereof any Subordinated Debt or bring suit or institute
any other actions or proceedings to enforce its rights or interests
under or in respect of the Subordinated Debt;
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(ii) exercise any rights under or
with respect to (A) any guaranties of the Subordinated Debt,
or (B) any collateral held by it, including causing or
compelling the pledge or delivery of any collateral, any attachment
of, levy upon, execution against, foreclosure upon or the taking of
other action against or institution of other proceedings with
respect to any collateral held by it, notifying any account debtors
of the Borrower or asserting any claim or interest in any insurance
with respect to any collateral, or attempt to do any of the
foregoing;
(iii) exercise any rights to
set-offs and counterclaims in respect of any indebtedness,
liabilities or obligations of such Guarantor to the Borrower
against any of the Subordinated Debt; or
(iv) commence, or cause to be
commenced, or join with any creditor other than any Guaranteed
Party in commencing, any Insolvency Proceeding.
(d) Subordination Upon Any
Distribution of Assets of the Borrower . In the event of any
payment or distribution of assets of the Borrower of any kind or
character, whether in cash, property or securities, upon any
Insolvency Proceeding with respect to or involving the Borrower,
(i) all amounts owing on account of the Guaranteed
Obligations, including all interest accrued thereon at the contract
rate both before and after the initiation of any such proceeding,
whether or not an allowed claim in any such proceeding, shall first
be paid in full in cash, or payment provided for in cash or in cash
equivalents, before any Subordinated Debt Payment is made; and
(ii) to the extent permitted by applicable law, any
Subordinated Debt Payment to which such Guarantor would be entitled
except for the provisions hereof, shall be paid or delivered by the
trustee in bankruptcy, receiver, assignee for the benefit of
creditors or other liquidating agent making such payment or
distribution directly to the Administrative Agent (on behalf of the
other Guaranteed Parties) for application to the payment of the
Guaranteed Obligations in accordance with clause (i), after
giving effect to any concurrent payment or distribution or
provision therefor to any Guaranteed Party in respect of such
Guaranteed Obligations.
(e) Authorization to
Administrative Agent . If, while any Subordinated Debt is
outstanding, any Insolvency Proceeding is commenced by or against
the Borrower or its property:
(i) the Administrative Agent, when
so instructed by the Required Lenders, is hereby irrevocably
authorized and empowered (in the name of the Guaranteed Parties or
in the name of any Guarantor or otherwise), but shall have no
obligation, to demand, sue for, collect and receive every payment
or distribution in respect of the Subordinated Debt and give
acquittance therefor and to file claims and proofs of claim and
take such other action (including voting the Subordinated Debt) as
it may deem necessary or advisable for the exercise or enforcement
of any of the rights or interests of the Guaranteed Parties;
and
(ii) each Guarantor shall promptly
take such action as the Administrative Agent (on instruction from
the Required Lenders) may reasonably request (A) to collect
the Subordinated Debt for the account of the Guaranteed Parties and
to file appropriate claims or proofs of claim in respect of the
Subordinated Debt, (B) to execute and deliver to the
Administrative Agent, such powers of attorney, assignments and
other instruments as it may request to enable it to enforce any and
all claims with respect to the Subordinated Debt, and (C) to
collect and receive any and all Subordinated Debt
Payments.
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SECTION 8 Continuing Guaranty
. This Guaranty is a continuing guaranty and agree
