AMENDMENT NO. 1
TO
MASTER SHELF AGREEMENT
(SCS Transportation, Inc.)
As of April 21,
2005
Prudential Investment Management, Inc. (“
Prudential ”)
The Prudential Insurance Company
of America (“ PICA
”)
Pruco Life Insurance Company
Reliastar Life Insurance Company
Southland Life Insurance Company
Each Prudential Affiliate (as defined herein)
which becomes bound by certain
provisions of the
Agreement as hereinafter provided (together with
each above-named entity, the “ Purchasers ”)
c/o Prudential Capital Group
2200 Ross Avenue, Suite 4200E
Dallas, Texas 75201
Ladies and Gentlemen:
We refer to the Master Shelf
Agreement, dated as of September 20, 2002 (the “
Agreement ”), among the undersigned, SCS
Transportation, Inc. (the “ Company ”),
Prudential, PICA, Pruco Life Insurance Company, Reliastar Life
Insurance Company and Southland Life Insurance Company. Unless
otherwise defined herein, the terms defined in the Agreement shall
be used herein as therein defined.
The Company desires to
(i) increase the amount of the Notes available to be issued
under the Agreement to an aggregate principal amount of
$150,000,000, (ii) extend the Issuance Period until
April 21, 2008 and (iii) amend certain provisions of the
Agreement. Prudential and the holders of Notes have agreed to
permit the Facility to be increased to $150,000,000. However, PICA
and its Subsidiaries and other corporations owned by Prudential
Financial, Inc. may only purchase and hold Notes in an aggregate
principal amount not to exceed $100,000,000. Amounts in excess of
$100,000,000 of Accepted Notes will be purchased by Prudential
Affiliates that are managed accounts managed by Prudential.
Therefore, Prudential, the holders of
the Notes and the Company, in consideration of the mutual promises
and agreements set forth herein and in the Agreement, agree as
follows:
1
1. Amendments.
(a) Paragraph 1. Authorization of Notes.
Paragraph 1 of the Agreement is amended by deleting the amount
“$125,000,000” contained therein and substituting
therefore the amount “$150,000,000.”
(b) Paragraph 2A. Facility. Paragraph 2A
of the Agreement is amended in full to read as follows:
"(i) Facility. Prudential is
willing to consider, in its sole discretion and within limits which
may be authorized for purchase by Prudential Affiliates from time
to time, the purchase of $150,000,000 of the total amount of
authorized Notes pursuant to this Agreement. The willingness of
Prudential to consider such purchase of Notes is herein called the
“ Facility ”. At any time, subject to the
additional limitations in Paragraph 2A(ii), the aggregate principal
amount of Notes stated in Paragraph 1A, minus the
aggregate principal amount of Notes purchased and sold pursuant to
this Agreement prior to such time, minus the aggregate
principal amount of Accepted Notes which have not yet been
purchased and sold hereunder prior to such time is herein called
the “ Available Facility Amount ” at such time.
NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL TO CONSIDER
PURCHASES OF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS
UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL AFFILIATE
SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE NOTES, OR
TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC
PURCHASES OF NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED
AS A COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE.
(ii) Limitation on Facility.
Notwithstanding anything in paragraph 2A(i), the Company may not
request the issuance of Notes, and neither Prudential nor any other
Prudential Financial Entity shall be required to purchase Notes
pursuant to the Facility if, after the issuance of such Notes, the
aggregate amount of SCS Exposure would exceed $100,000,000. If the
purchase of any Accepted Note would cause the aggregate amount of
SCS Exposure to exceed $100,000,000, such Accepted Notes would be
purchased by Prudential Affiliates that are not Prudential
Financial Entities.”
(c) Paragraph 2B. Issuance Period.
Paragraph 2B of the Agreement is amended in full to read as
follows:
“2B. Issuance Period.
Notes may be issued and sold pursuant to this Agreement until the
earlier of (i) April 21, 2008 (or if such day is not a
Business Day, the Business Day next preceding such day) and
(ii) the thirtieth day after Prudential shall have given to
the Company, or the Company shall have given to Prudential, written
notice stating that it elects to terminate the issuance and sale of
Notes pursuant to this Agreement (or if such thirtieth day is not a
Business Day, the Business Day next preceding such thirtieth day).
The period during which Notes may be issued and sold pursuant to
this Agreement is herein called the ‘ Issuance Period
‘.”
(d) Paragraph 5A. Financial Statements; Notice of
Defaults. Paragraph 5A of the Agreement is amended
(I) by amending clause (i) thereof to delete the word
“GAAP” at the end thereof and replace it with the
phrase “then current SEC and GAAP standards” and
(II) by amending clause (ii) thereof to delete the word
“GAAP” at the end thereof and replace it with the
phrase “then current SEC and GAAP standards.”
(e) Paragraph 6A(1). Total Indebtedness to EBITDAR
Ratio. Paragraph 6A(1) of the Agreement is amended in its
entirety to read as follows:
“6A(1). Total Indebtedness
to EBITDAR Ratio. The Company will not permit, on any date, the
ratio of (i) Total Indebtedness excluding all letters of
credit on such date to (ii)(a) EBITDAR of the Company for the
period of four consecutive fiscal quarters most recently ended on
or immediately preceding the date of determination and
(b) without duplication, EBITDAR for any Person acquired by
the Company or any Subsidiary through purchase, merger or
consolidation or otherwise for each consecutive fiscal quarter or
portion thereof from the date 12 months prior to the date of
termination to the applicable acquisition less (c) EBITDAR for any
Person disposed of by the Company or any Subsidiary for each
consecutive fiscal quarter or portion thereof from the date
12 months prior to the date of determination to the applicable
disposition to be greater than 2.75 to 1.00.”
(f) Paragraph 6A(2). Adjusted Total Indebtedness
to EBITDAR Ratio. Paragraph 6A(2) of the Amendment is
amended in its entirety to read as follows:
“6A(2). Adjusted Total
Indebtedness to EBITDAR Ratio. The Company will not permit, on
any date, the ratio of (i) Adjusted Total Indebtedness on such
date to (ii)(a) EBITDAR of the Company for the period of four
consecutive fiscal quarters most recently ended on or immediately
preceding the date of determination and (b) without
duplication, EBITDAR for any Person acquired by the Company or any
Subsidiary through purchase, merger or consolidation or otherwise
for each consecutive fiscal quarter or portion thereof from the
date 12 months prior to the date of termination to the
applicable acquisition less (c) EBITDAR for any Person disposed of
by the Company or any Subsidiary for each consecutive fiscal
quarter or portion thereof from the date 12 months prior to
the date of determination to the applicable disposition to be
greater than 3.00 to 1.00.”
(g) Paragraph&
