Exhibit 10.4
EXECUTION COPY
AMENDMENT TO PLEDGE
AGREEMENT
THIS AMENDMENT TO PLEDGE
AGREEMENT (this “
Amendment ”) is dated as of August 28, 2009 and
is entered into by and among each Pledgor named in the signature
pages hereof (each a “ Pledgor ” and,
collectively, the “ Pledgors ”) 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, the each of the Pledgors entered into that
certain Pledge Agreement (as in effect on the date hereof
immediately before giving effect to the Amended and Restated Credit
Agreement, the “ Original Pledge Agreement ”)
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 Pledgor
amend the Original Pledge Agreement 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
PLEDGE AGREEMENT
1.1 Amendments to the
Recitals .
(a) The second paragraph of the
Original Pledge Agreement is hereby amended by deleting the
parenthetical “(the “ Borrower ”)”
and replacing it with “(“ Pacer
”)”.
(b) The third paragraph of the
Original Pledge Agreement is hereby amended by deleting such
paragraph in its entirety and replacing it with the
following:
“WHEREAS, it is a condition
precedent to the Borrowings and issuances of Letters of Credit
under the Credit Agreement and to the extension of Bank Products
that each Pledgor enter into this Agreement and grant to the
Administrative Agent, for itself and for the ratable benefit of the
other Secured Parties, the security interests hereinafter provided
to secure the Secured Obligations.”
1.2 Amendment to Section 1: Definitions;
Interpretation . Section 1 of the Original Pledge Agreement
is hereby amended by:
(a) deleting the definitions of
“FX/Cash Management Agreement” and “Swap
Contract” in their entirety;
(b) replacing the words “the
Borrower” in the definition of “Secured
Obligation” with the word “the Borrowers”;
and
(c) replacing clause (ii) and
clause (iii) in the definition of “Secured
Obligation” in their entirety with the following new clause
(ii):
“and (ii) to a Lender and
any of its 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) arising under any Bank
Product”.
1.3 Amendment to
Section 4: Covenants . Section 4 of the Original Pledge Agreement
is hereby amended by replacing the words “any Swap Contract
or FX/Cash Management Agreement” with the words “any
agreement relating to any Bank Product”.
1.4 Amendment to
Section 5(a): Distributions and Voting Prior to an Event of
Default . Section 5 of the Original Pledge Agreement
is hereby amended by adding the following proviso at the end of
clause (i) thereto:
“; provided , however,
that all such amounts shall be deposited pursuant to a lockbox or
other arrangement reasonably satisfactory to the Administrative
Agent into a Dominion Account in accordance with Section 2.14
and Section 8.02(d) of the Credit Agreement”.
1.5 Amendment to
Section 5(e): Appointment of Administrative Agent as
Attorney-in-Fact . Section 5(e) of the Original Pledge
Agreement is hereby amended by replacing the words “any Swap
Contract or any FX/Cash Management Agreements” therein with
the words “any agreement relating to any Bank
Product”.
1.6 Amendment to
Section 8(b): Proceeds Account . Section 8(b) of the Original Pledge
Agreement is hereby amended by replacing the words “any Swap
Contract or any FX/Cash Management Agreements” therein with
the words “any agreement relating to any Bank
Product”.
1.7 Amendment to
Section 10: Certain Waivers . Section 10 of the Original Pledge Agreement
is hereby amended by:
(a) replacing the words “the
Borrower” in clause (c)(i) thereto with the words “the
Borrowers”
(b) replacing the words “the
Borrower’s” in clause (c)(iii) thereto with the words
“any Borrower’s”;
2
(c) replacing the words “the
Borrower” in clause (c)(vii) thereto with the words
“any Borrower”;
(d) replacing each occurrence of the
words “the Borrower” in clause (d) thereto with
the words “any Borrower”;
(e) replacing each occurrence of the
words “the Borrower” in clause (e) thereto with
the words “any Borrower”;
(f) replacing the words “the
Borrower” in clause (f) thereto with the words
“any Borrower”; and
(g) replacing each occurrence of the
words “the Borrower” in clause (g) thereto with
the words “the Borrowers”
1.8 Amendment to
Section 11: Notices . Section 11 of the Original Pledge Agreement
is hereby amended by deleting the words “in the case of the
Swap Obligation Providers, to the addresses or telecopier numbers
specified in the respective Swap Contracts, and in the case of
FX/Cash Management Obligation Providers, to the addresses or
telecopier numbers specified in the respective FX/Cash
Agreements” and replacing such words with the
following:
“and in the case of any Bank
Product, to the addresses or telecopier numbers specified the
applicable agreement relating to such Bank
Product”.
1.9 Amendment to
Section 13(b): Indemnification . Section 13(b) of the Original Pledge
Agreement is hereby amended by replacing the words “the
Borrower” in clause (ii) thereof with the words
“any Borrower”.
1.10 Amendment to
Section 24: Termination . Section 24 of the Original Pledge Agreement
is hereby amended by replacing the words “termination of all
Swap Contracts, termination of all FX/Cash Management
Agreements” therein with the words “termination of any
agreement relating to any Bank Product”.
SECTION II. CONDITIONS TO
EFFECTIVENESS
This Amendment shall become
effective as of the date hereof only upon the satisfaction of all
of the following conditions precedent:
A. Execution.
Administrative Agent shall have
received a counterpart signature page of this Amendment duly
executed by each of the Pledgors and the Administrative
Agent.
B. Amended and Restated Credit
Agreement. The Amended
and Restated Credit Agreement shall have become effective in
accordance with its terms.
SECTION III. REPRESENTATIONS AND
WARRANTIES
A. Corporate Power and
Authority. Each
Pledg
