EXHIBIT 4.18
REGISTRATION RIGHTS AGREEMENT
Dated as of May 28, 1999
by and among
PACER INTERNATIONAL, INC.,
and
MORGAN STANLEY & CO. INCORPORATED,
BT ALEX. BROWN INCORPORATED,
CREDIT SUISSE FIRST BOSTON CORPORATION
and
CREDIT LYONNAIS SECURITIES (USA) INC.
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
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entered into as of May 28, 1999, by and among PACER INTERNATIONAL, INC., a
Tennessee corporation (the "Company"), the companies named on Schedule A hereto
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and any company which later becomes a party hereto in accordance with this
Agreement, as guarantors (collectively, the "Guarantors" and together with the
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Company, the "Issuers"), and MORGAN STANLEY & CO. INCORPORATED, BT ALEX. BROWN
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INCORPORATED, CREDIT SUISSE FIRST BOSTON CORPORATION and CREDIT LYONNAIS
SECURITIES (USA) INC. (collectively, the "Placement Agents").
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This Agreement is made pursuant to the Purchase Agreement dated May
24, 1999, by and among the Company, the Guarantors and the Placement Agents (the
"Purchase Agreement"), which provides for the sale by the Company to the
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Placement Agents of an aggregate of $150,000,000 principal amount of the
Company's 11 3/4% Senior Subordinated Notes Due 2007 (the "Notes") and the
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guarantees thereof by the Guarantors (the "Guarantees" and together with the
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Notes, the "Securities"). The Securities are being issued pursuant to an
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indenture, dated as of the date hereof (the "Indenture"), among the Company, the
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Guarantors and Wilmington Trust Company, as trustee (the "Trustee").
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In order to induce the Placement Agents to enter into the Purchase
Agreement, the Issuers have agreed to provide to the Placement Agents and their
direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
1. The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
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shall have the following meanings:
Additional Interest: See Section 4 hereof.
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Advice: See the last paragraph of Section 5 hereof.
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affiliate: An "affiliate" as such term is defined in Rule 405.
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Agreement: See the introductory paragraphs hereto.
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Applicable Period: See Section 2(b) hereof.
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Business Day: Any day that is not a Saturday, Sunday or a day on
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which banking institutions in New York are authorized or required by law to be
closed.
Company: See the introductory paragraphs hereto.
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Effectiveness Date: The 180th day after the Issue Date; provided,
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however, that with respect to any Shelf Registration, the Effectiveness Date
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shall be the 60th day after the Filing Date with respect thereto.
Effectiveness Period: See Section 3(a) hereof.
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Event Date: See Section 4(b) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
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Exchange Offer: See Section 2(a) hereof.
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Exchange Offer Registration Statement: See Section 2(a) hereof.
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Filing Date: (A) With respect to an Exchange Offer Registration
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Statement, the earlier of the date of the filing thereof with the SEC and the
120th day after the Issue Date, and (B) in each other case (which may be
applicable notwithstanding the consummation of the Exchange Offer), the 60th day
after the delivery (or, if earlier, the date of required delivery) of a Shelf
Notice pursuant to Section 2(c) hereof.
Guarantees: See the introductory paragraphs hereto.
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Guarantors: See the introductory paragraphs hereto.
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Holder: Any holder of a Security.
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indemnified parties: See Section 7(c) hereof.
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indemnifying parties: See Section 7(c) hereof.
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Indenture: See the introductory paragraphs hereto.
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Information: See Section 5(n) hereof.
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Initial Shelf Registration: See Section 3(a) hereof.
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Inspectors: See Section 5(n) hereof.
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Issue Date: May 28, 1999, the date of original issuance of the Notes.
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NASD: See Section 5(s) hereof.
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Notes: See introductory paragraphs hereto.
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Offering Memorandum: The final offering memorandum of the Company
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dated May 24, 1999, in respect of the offering of the Securities.
Participating Broker-Dealer: See Section 2(b) hereof.
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Person: An individual, trustee, corporation, partnership, limited
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liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Placement Agents: See the introductory paragraphs hereto.
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Private Exchange: See Section 2(b) hereof.
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Private Exchange Notes: See Section 2(b) hereof.
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
under the Securities Act), as amended or supplemented by any prospectus
supplement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
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Records: See Section 5(n) hereof.
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Registrable Notes: Each Note upon its original issuance and at all
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times subsequent thereto, each Exchange Note (and the related Guarantees) as to
which Section 2(c)(iv) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Note (and the related
Guarantees) upon original issuance thereof and at all times subsequent thereto,
until the earliest to occur of (i) a Registration Statement (other than, with
respect to any Exchange Note as to which Section 2(c)(iv) hereof is applicable,
the Exchange Offer Registration Statement) covering such Note, Exchange Note or
Private Exchange Note has been declared effective by the SEC and such Note
(unless such Note was not tendered for exchange by the Holder thereof), Exchange
Note or such Private Exchange Note (and the related Guarantees), as the case may
be, has been disposed of in accordance with
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such effective Registration Statement, (ii) such Note has been exchanged
pursuant to the Exchange Offer for an Exchange Note or Exchange Notes (and the
related Guarantees) that may be resold without restriction under state and
federal securities laws, (iii) such Note, Exchange Note or Private Exchange Note
(and the related Guarantees), as the case may be, ceases to be outstanding for
purposes of the Indenture, or (iv) such Note, Exchange Note or Private Exchange
Note (and the related Guarantees), as the case may be, in the reasonable opinion
of the Company, may be resold without restriction pursuant to Rule 144(k) under
the Securities Act.
Registration Default: See Section 4(c).
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Registration Statement: Any registration statement of the Company
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that covers any of the Notes, the Exchange Notes or the Private Exchange Notes
(and the related Guarantees) filed with the SEC under the Securities Act,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 under the Securities Act.
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Rule 144A: Rule 144A under the Securities Act.
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Rule 405: Rule 405 under the Securities Act.
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Rule 415: Rule 415 under the Securities Act.
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Rule 424: Rule 424 under the Securities Act.
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SEC: The Securities and Exchange Commission.
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Securities: See the introductory paragraphs hereto. "Securities"
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shall include all Notes, Exchange Notes and Private Exchange Notes.
Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
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Shelf Registration: See Section 3(a) hereof.
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Subsequent Shelf Registration: See Section 3(b) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and the trustee (if any)
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under any indenture governing the Exchange Notes and Private Exchange Notes (and
the related Guarantees).
underwritten registration or underwritten offering: A registration in
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which securities of the Company are sold to an underwriter for reoffering to the
public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms, no-
action letters and other regulatory requirements (collectively, "Regulatory
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Requirements") shall be deemed to refer also to any amendments thereto and all
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subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith.
2. Exchange Offer
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(a) The Issuers shall file with the SEC, no later than the Filing
Date, a Registration Statement (the "Exchange Offer Registration Statement") on
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an appropriate registration form with respect to a registered offer (the
"Exchange Offer") to exchange any and all of the Registrable Notes for a like
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aggregate principal amount of notes (the "Exchange Notes") of the Company,
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guaranteed by the Guarantors on substantially the same terms as the Guarantees,
that are identical in all material respects to the Securities, except that such
notes shall contain no restrictive legend thereon, and which are entitled to the
benefits of the Indenture or a trust indenture which is identical in all
material respects to the Indenture (other than such changes to the Indenture or
any such identical trust indenture as are necessary to comply with the TIA) and
which, in either case, has been qualified under the TIA. The Exchange Offer
shall comply with all applicable tender offer rules and regulations under the
Exchange Act and other applicable law. The Issuers shall use their commercially
reasonable efforts to (x) cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness Date,
(y) keep the Exchange Offer open for not less than 20 Business Days (or longer
if required by applicable law) after the date that notice of the Exchange Offer
is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the
35th day following the date on which the Exchange Offer Registration Statement
is declared effective by the SEC. If, after the Exchange Offer Registration
Statement is initially declared effective by the SEC, the Exchange Offer or the
issuance of the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, the Exchange Offer Registration Statement shall be deemed not
to have become effective for purposes of this Agreement, unless such
interference is cured within five Business Days.
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Each Holder (including, without limitation, each Participating Broker-
Dealer (as defined)) who participates in the Exchange Offer will be required to
represent to the Company, in writing (which may be contained in the applicable
letter of transmittal) that: (i) any Exchange Notes acquired in exchange for
Registrable Notes tendered are being acquired in the ordinary course of business
of the Person receiving such Exchange Notes, whether or not such recipient is a
Holder of Registrable Notes, (ii) at the time of the commencement of the
Exchange Offer, neither such Holder nor, to the actual knowledge of such Holder,
any other Person receiving Exchange Notes from such Holder has an arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act, (iii) the Holder is
not an affiliate of any Issuer, (iv) if such Holder is not a Participating
Broker-Dealer, that it has not engaged in, and does not intend to engage in, the
distribution of Exchange Notes, and (v) if such Holder is a Participating
Broker-Dealer, such Holder acquired the Registrable Notes as a result of market-
making activities or other trading activities and that it will comply with the
applicable provisions of the Securities Act with respect to resale of any
Exchange Notes.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, mutatis
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mutandis, solely with respect to Registrable Notes that are Private Exchange
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Notes, Exchange Notes as to which Section 2(c)(iv) hereof is applicable and
Exchange Notes held by Participating Broker-Dealers, and the Company shall have
no further obligation to register Registrable Notes (other than Private Exchange
Notes and Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to
Section 3 hereof.
(b) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Placement Agents, which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
"beneficial owner" (as defined in Rule l3d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
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Broker-Dealer"). Such "Plan of Distribution" section shall also expressly
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permit, to the extent permitted by applicable policies and regulations of the
SEC, the use of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent permitted by
applicable policies and regulations of the SEC, all Participating Broker-
Dealers, and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Notes in compliance with the Securities
Act.
In accordance with Section 5 hereof, the Issuers shall use their
commercially reasonable efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus contained therein
in order to permit such Prospectus to be law-
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fully delivered by all Persons subject to the prospectus delivery requirements
of the Securities Act during the period required by the Securities Act for use
in connection with any resale of Exchange Notes; provided that such period shall
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not exceed 180 days after consummation of the Exchange Offer (or such longer
period if extended pursuant to the last paragraph of Section 5 hereof) (the
"Applicable Period").
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If, prior to consummation of the Exchange Offer, any Placement Agent
holds any Notes acquired by it that have, or that are reasonably likely to be
determined to have, the status of an unsold allotment in an initial
distribution, or any Holder is not entitled to participate in the Exchange
Offer, the Company, upon the request of any such Holder, shall simultaneously
with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver
to any such Holder, in exchange (the "Private Exchange") for such Notes held by
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any such Holder, a like principal amount of notes (the "Private Exchange Notes")
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of the Company, guaranteed by the Guarantors on substantially similar terms as
the Guarantees, that are identical in all material respects to the Exchange
Notes except for the placement of a restrictive legend on such Private Exchange
Notes. The Private Exchange Notes shall be issued pursuant to the same
indenture as the Exchange Notes and bear the same CUSIP number as the Exchange
Notes. All of the Securities shall vote and consent together on all matters as
one class, and none of the Notes, the Exchange Notes or the Private Exchange
Notes will have the right to vote or consent as a separate class on any matter.
In connection with the Exchange Offer, the Company shall:
(1) mail, or cause to be mailed, to each Holder of record entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Registrable Notes at any time
prior to the close of business, New York time, on the last Business Day on
which the Exchange Offer remains open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Company shall:
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(1) accept for exchange all Registrable Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer and the Private
Exchange, if any;
(2) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Registrable Notes tendered for exchange, Exchange Notes or
Private Exchange Notes, as the case may be, equal in principal amount to
the Registrable Notes of such Holder so accepted for exchange; provided,
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that in the case of any Registrable Notes held in global form by a
depositary, authentication and delivery to such depositary of one or more
Exchange Notes in global form in an equivalent principal amount thereto for
the account of such Holders in accordance with the Indenture (or the
indenture described in Section 2(a) hereof) shall satisfy such
authentication and delivery requirement.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency with
respect to the Exchange Offer or the Private Exchange, and no material adverse
development shall have occurred with respect to the Company, (iii) all
governmental approvals shall have been obtained, which approvals the Company
deems necessary for the consummation of the Exchange Offer or Private Exchange,
(iv) the conditions precedent to the Company's obligations under this Agreement
shall have been fulfilled and (v) such other conditions as shall be agreed upon
by the Company and the Placement Agents.
(c) If (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuers are not permitted to effect
the Exchange Offer, (ii) the Exchange Offer is not consummated on or prior to
the 210th day after the Issue Date, (iii) any holder of Private Exchange Notes
so requests in writing to the Company, on or prior to the 60th day after the
consummation of the Exchange Offer, or (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Notes
on the date of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such Holder as
an affiliate of any of the Issuers or as an "underwriter" within the meaning of
the Securities Act) and such Holder so requests by written notice to the Company
on or prior to the 60th day after the consummation of the Exchange Offer, then
in the case of each of clauses (i) to and including (iv) of this sentence, the
Issuers shall promptly (and in any event within 20 days after the occurrence of
any of the events described in such clauses (i) to and including (iv)) deliver
to the Holders and the Trustee written
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notice thereof (the "Shelf Notice") and the Issuers shall file a Shelf
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Registration pursuant to Section 3 hereof.
3. Shelf Registration
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If at any time a Shelf Notice is delivered or required to be delivered
as contemplated by Section 2(c) hereof, then:
(a) Initial Shelf Registration. The Issuers shall file with the SEC a
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Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes not exchanged in the Exchange
Offer, Private Exchange Notes and Exchange Notes as to which Section 2(c)(iv) is
applicable (the "Initial Shelf Registration"). The Issuers shall use their
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commercially reasonable efforts to file with the SEC the Initial Shelf
Registration on or before the applicable Filing Date. The Initial Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). The Company shall not permit any securities other than
the Registrable Notes to be included in the Initial Shelf Registration or any
Subsequent Shelf Registration.
In accordance with Section 5 hereof, the Issuers shall use their
commercially reasonable efforts to cause the Initial Shelf Registration to be
declared effective under the Securities Act on or prior to the applicable
Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date which is two years from the
later of the Issue Date and the date which is two years after the date on which
any affiliate of the Company ceased to hold Registrable Notes (the
"Effectiveness Period") or such shorter period ending on the earliest to occur
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of (i) all Registrable Notes covered by the Initial Shelf Registration being
sold in the manner set forth and as contemplated in the Initial Shelf
Registration, (ii) a Subsequent Shelf Registration covering all of the
Registrable Notes covered by and not sold under the Initial Shelf Registration
or an earlier Subsequent Shelf Registration being declared effective under the
Securities Act, or (iii) the date on which, in the written opinion of counsel to
the Company, all outstanding Registrable Notes held by Persons that are not
affiliates of the Company may be resold without registration under the
Securities Act pursuant to Rule 144(k) under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
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or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the Registrable Notes registered thereunder), the Issuers shall use their
commercially reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 45
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days of such cessation of effectiveness amend the Initial Shelf Registration in
a manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant to Rule
415 covering all of the Registrable Notes covered by and not sold under the
Initial Shelf Registration or an earlier Subsequent Shelf Registration (each, a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed,
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the Issuers shall use their commercially reasonable efforts to cause the
Subsequent Shelf Registration to be declared effective under the Securities Act
as soon as practicable after such filing and to keep such subsequent Shelf
Registration continuously effective for a period equal to the number of days in
the Effectiveness Period less the aggregate number of days during which the
Initial Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration" means the
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Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement
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and amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act or if reasonably requested by
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
(d) Provision by Holders of Certain Information in Connection with
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the Shelf Registration. No Holder of Registrable Notes may include any of its
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Registrable Notes in any Shelf Registration unless and until such Holder
furnishes to the Company, in writing within 30 days after receipt of a request
therefor, the information specified in Items 507 and 508 (as applicable) of
Regulation S-K under the Securities Act and any other applicable rules,
regulations or policies of the SEC for use in connection with any Shelf
Registration or Prospectus included therein, on a form to be provided by the
Company. No Holder of Registrable Notes shall be entitled to Additional Interest
pursuant to Section 4 hereof unless and until such Holder shall have provided
all such information. Each selling Holder agrees to furnish promptly to the
Company additional information to be disclosed so that the information
previously furnished to the Company by such Holder does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
4. Additional Interest
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(a) The Issuers and the Placement Agents agree that the Holders will
suffer damages if the Issuers fail to fulfill their obligations under Section 2
or Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuers, jointly and severally,
agree to pay, as liquidated damages and as the sole
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and exclusive remedy of the Holders should the Issuers fail to fulfill their
obligations under Section 2 or Section 3 hereof, additional interest on the
Securities ("Additional Interest ") under the circumstances and to the extent
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set forth below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed
on or prior to the 120th day after the Issue Date or (B)
notwithstanding that the Issuers have consummated or will
consummate the Exchange Offer, the Issuers are required to
file a Shelf Registration and such Shelf Registration is not
filed on or prior to the Filing Date applicable thereto,
then, commencing on the day after any such Filing Date,
Additional Interest shall accrue on the principal amount of
the Securities at a rate of 0.25% per annum for the first 90
days immediately following each such Filing Date, and such
Additional Interest rate shall increase by an additional
0.25% per annum at the beginning of each subsequent 90-day
period, or
(ii) if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared
effective by the SEC on or prior to the 180th day after the
Issue Date or (B) notwithstanding that the Issuers have
consummated or will consummate the Exchange Offer, the
Issuers are required to file a Shelf Registration and such
Shelf Registration is not declared effective by the SEC on
or prior to the Effectiveness Date in respect of such Shelf
Registration, then, commencing on the day after such
Effectiveness Date, Additional Interest shall accrue on the
principal amount of the Securities at a rate of 0.25% per
annum for the first 90 days immediately following the day
after such Effectiveness Date, and such Additional Interest
rate shall increase by an additional 0.25% per annum at the
beginning of each subsequent 90-day period, or
(iii) if (A) the Company has not exchanged Exchange
Notes for all Securities validly tendered in accordance with
the terms of the Exchange Offer on or prior to the 210th day
after the Issue Date or (B) if applicable, a Shelf
Registration has been declared effective and such Shelf
Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall accrue
on the principal amount of the Securities at a rate of 0.25%
per annum for the first 90 days commencing on (x) the 211th
day after the Issue Date with respect to Notes validly
tendered and not exchanged by the Company, in the case of
(A) above, or (y) the day such Shelf Registration ceases to
be effective in the case of (B) above, and such Additional
Inter-
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est rate shall increase by an additional 0.25% per annum at
the beginning of each such subsequent 90-day period (it
being understood and agreed that, notwithstanding any
provision to the contrary, so long as any Note that is the
subject of a Shelf Notice is then covered by an effective
Shelf Registration, no Additional Interest shall accrue on
such Note);
provided, however, that the Additional Interest rate on the Securities may not
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exceed at any one time in the aggregate 1.00% per annum; provided, further,
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however, that in no event shall the Company be obligated to pay Additional
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Interest under more than one of the clauses in this Section 4(a) at any one
time; provided, further, however, that (1) upon the filing of the applicable
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Exchange Offer Registration Statement or the applicable Shelf Registration as
required hereunder (in the case of clause (i) above of this Section 4(a)), (2)
upon the effectiveness of the Exchange Offer Registration Statement or the
applicable Shelf Registration as required hereunder (in the case of clause (ii)
of this Section 4(a)), or (3) upon the exchange of the applicable Exchange Notes
for all Securities validly tendered (in the case of clause (iii)(A) of this
Section 4(a)), or upon the effectiveness of the applicable Shelf Registration
which had ceased to remain effective (in the case of clause (iii)(B) of this
Section 4(a)), Additional Interest on the Securities in respect of which such
events relate as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue.
(b) Notification of Trustee. The Company shall notify the Trustee
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within three Business Days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "Event Date").
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Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii)
of this Section 4 will be payable in cash on the dates, and to the Persons, to
whom interest on the Securities is payable. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest rate by the
principal amount of the outstanding Securities, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
(c) Suspension of Additional Interest for Good Cause. Additional
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Interest shall not accrue with respect to an event listed in Sections
4(a)(i)(B), (ii)(B) and (iii)(B) hereof (each, a "Registration Default") if (i)
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such Registration Default under Section 4(a)(iii)(B) hereof occurs because of
the filing of a post-effective amendment to such Registration Statement to
incorporate annual audited financial information with respect to the Company
where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related Prospectus, (ii) such
Registration Default occurs because of the occurrence of other material events
or developments with respect to the Com-
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pany that would need to be described in such Registration Statement or the
related Prospectus, and the effectiveness of such Registration Statement is
reasonably required to be suspended while such Registration Statement and
related Prospectus are amended or supplemented to reflect such events or
developments, (iii) such Registration Default results from the suspension of the
effectiveness of such Registration Statement because of the existence of
material events or developments with respect to the Company or any of its
affiliates, the disclosure of which the Company determines in good faith would
have a material adverse effect on the business, operations or prospects of the
Company, or (iv) such Registration Default results from the suspension of the
effectiveness of such Registration Statement because the Company does not wish
to disclose publicly a pending material business transaction that has not yet
been publicly disclosed; provided, however, that if any such Registration
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Default exists and continues on more than an aggregate of 60 days in any
calendar year, Additional Interest shall accrue and be payable in accordance
with Sections 4(a) and 4(b) hereof from the 61st day on which any such
Registration Default exists, and they shall continue to accrue until the date on
which such Registration Default is cured.
5. Registration Procedures
-----------------------
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of the Securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder, the Issuers
shall:
(a) Prepare and file with the SEC on or prior to the applicable
Filing Date, a Registration Statement or Registration Statements as
required by Section 2 or 3 hereof, and use their commercially reasonable
efforts to cause each such Registration Statement to become effective and
remain effective as provided herein; provided, however, that, if
------ --------
(1) such filing is pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period relating
thereto and from whom the Company has received written notice that it
will be a Participating Broker-Dealer in the Exchange Offer,
-13-
before filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Notes included in such Registration Statement (with respect
to a Registration Statement filed pursuant to Section 3 hereof) or each
such Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing underwriter
or underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least five days prior to such filing, or such later date as is
reasonable under the circumstances). The Issuers shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal amount of the
Registrable Notes included in such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the
managing underwriter or underwriters, if any, shall reasonably object on a
timely basis, except for any Registration Statement or amendment thereto or
related Prospectus or supplement thereto (a copy of which has been
previously furnished as provided in the preceding sentence) which counsel
to the Company has advised the Company in writing is required to be filed
in order to comply with applicable law.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Shelf
Registration or Exchange Offer Registration Statement continuously
effective for the Effectiveness Period or the Applicable Period,
respectively, and in any case, except for such periods as to which
Additional Interest does not accrue pursuant to Section 4(c) hereof, cause
the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424; and comply with the provisions of the Securities Act and the
Exchange Act applicable to each of them with respect to the disposition of
all Securities covered by such Registration Statement as so amended or in
such Prospectus as so supplemented and with respect to the subsequent
resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. The Issuers shall be deemed not to have
used their commercially reasonable efforts to keep a Registration Statement
effective during the Effectiveness Period or the Applicable Period, as the
case may be, relating thereto if any Issuer knowingly takes any action that
would result in selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being able
to sell such Registrable Notes or such Exchange Notes during that period
unless such action is required by applicable law or permitted by this
Agreement.
-14-
(c) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period relating
thereto from whom the Company has received written notice that it will
be a Participating Broker-Dealer in the Exchange Offer,
notify the selling Holders of Registrable Notes (with respect to a Shelf
Registration filed pursuant to Section 3 hereof), or each such
Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their counsel and the managing underwriter
or underwriters, if any, promptly (but in any event within one business
day), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed and, with
respect to a Registration Statement or any post-effective amendment, when
the same has become effective under the Securities Act (including in such
notice a written statement that any Holder may, upon request, obtain, at
the sole expense of the Company, one conformed copy of such Registration
Statement or post-effective amendment including financial statements and
schedules thereto, documents incorporated or deemed to be incorporated
therein by reference and exhibits thereto), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of any Prospectus or
preliminary Prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable
Notes or resales of Exchange Notes by Participating Broker-Dealers the
representations and warranties of the Company contained in any agreement
(including any underwriting agreement) contemplated by Section 5(m) hereof
cease to be true and correct in all material respects, (iv) of the receipt
by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement
or any of the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition or any information
becoming known that makes any statement made in such Registration Statement
or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that in the case
-15-
of the Registration Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (vi) of
the Company's determination that a post-effective amendment to a
Registration Statement would be necessary or appropriate except, in the
case of clauses (iii), (iv), (v) and (vi), with respect to any event,
development or transaction permitted to be kept confidential without the
accrual of Additional Interest under Section 4(c)(iii) hereof, the Company
shall not be required to describe such event, development or transaction in
the written notice provided.
(d) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, use
their commercially reasonable efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer, for sale in any jurisdiction, and, if any
such order is issued, to use their commercially reasonable efforts to
obtain the withdrawal of any such order at the earliest practicable
moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested during the Effectiveness Period by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold in connection with an
underwritten offering or any Participating Broker-Dealer, (i) as promptly
as practicable incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters (if
any), such Holders, any Participating Broker-Dealer or counsel for any of
them reasonably request to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as
soon as practicable after the Company has received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment.
-16-
(f) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period,
furnish to each selling Holder of Registrable Notes (with respect to a
Shelf Registration filed pursuant to Section 3 hereof) and to each such
Participating Broker-Dealer who so requests (with respect to any such
Registration Statement) and to their respective counsel and each managing
underwriter (if any) at the sole expense of the Company, one conformed copy
of the Registration Statement or Registration Statements and each post-
effective amendment thereto, including financial statements and schedules
thereto, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits thereto.
(g) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period,
deliver to each selling Holder of Registrable Notes (with respect to a
Shelf Registration filed pursuant to Section 3 hereof), or each such
Participating Broker-Dealer (with respect to any such Registration
Statement), as the case may be, their respective counsel, and the managing
underwriter or underwriters, if any, at the sole expense of the Company, as
many copies of the Prospectus or Prospectuses (including each form of
preliminary Prospectus) and each amendment or supplement thereto and any
documents incorporated therein by reference as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuers
hereby consent to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection with
the offering and sale of the Registrable Notes covered by, or the sale by
Participating
-17-
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by
any Participating Broker-Dealer who seeks to sell Securities during the
Applicable Period, use their commercially reasonable efforts to register or
qualify, and to cooperate with the selling Holders of Registrable Notes or
each such Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters (if any) and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer or the managing
underwriter or underwriters (if any) reasonably request in writing;
provided, however, that where Securities held by Participating Broker-
-------- -------
Dealers or Registrable Notes are offered other than through an underwritten
offering, the Company agrees to cause its counsel to perform Blue Sky
investigations, and the Issuers agree to file registrations and
qualifications required to be filed pursuant to this Section 5(h), keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Securities
held by Participating Broker-Dealers or the Registrable Notes covered by
the applicable Registration Statement; provided, further, that none of the
-------- -------
Issuers shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction
where it is not then so subject, or (C) subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters (if any) to facilitate the timely preparation
and delivery of certificates representing Registrable Notes to be sold,
which certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations (subject to applicable
requirements contained in the Indenture or the indenture under which the
Registrable Notes were issued) and registered in such names as the managing
underwriter or underwriters (if any) or Holders may request.
(j) Subject to the last proviso in (h) above, use their commercially
reasonable efforts to cause the Registrable Notes covered by the
Registration Statement to be
-18-
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Notes, except as may be required solely as
a consequence of the nature of such selling Holder's business, in which
case the Company will cooperate in all reasonable respects with the filing
of such Registration Statement and the granting of such approvals.
(k) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period,
upon the occurrence of any event contemplated by paragraph 5(c)(v) or
5(c)(vi) hereof (except with respect to any event, development or
transaction permitted to be kept confidential without the accrual of
Additional Interest under Section 4(c)(iii) hereof for the period during
which such Additional Interest does not accrue), as promptly as practicable
prepare and (subject to Section 5(a) hereof) file with the SEC at the sole
expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder (with respect to
a Shelf Registration filed pursuant to Section 3 hereof) or to the
purchasers of the Exchange Notes to whom such Prospectus will be delivered
by a Participating Broker-Dealer (with respect to any such Registration
Statement), any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Notwithstanding
the foregoing, the Company shall not be required to amend or supplement a
Registration Statement, any related Prospectus or any document incorporated
or deemed to be incorporated therein by reference in the event that, and
for a period not to exceed an aggregate of 60 days in any calendar year if
(i) an event occurs and is continuing as a result of which the Shelf
Registration, any related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, would, in the Company's good faith
judgment, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading (with respect to such a Prospectus only, in the light of the
circumstances
-19-
under which they were made), and (ii) (a) the Company determines in its
good faith judgment that the disclosure of such event at such time would
have a material adverse effect on the business, operations or prospects of
the Company, or (b) the disclosure otherwise relates to a pending material
business transaction that has not yet been publicly disclosed.
(l) Prior to the effective date of the first Registration Statement
relating to the Securities, (i) provide the Trustee with certificates for
the Exchange Notes and the Private Exchange Notes in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number
for the Exchange Notes and the Private Exchange Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Securities in form and substance reasonably satisfactory to the Company,
and take all such other actions as are reasonably requested by the managing
underwriter or underwriters (if any) in order to expedite or facilitate the
registration or the disposition of such Registrable Notes, and in such
connection (i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Company and the
subsidiaries of the Company (including any acquired business, properties or
entity, if applicable), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated therein by
reference, in each case, as are customarily made by issuers to underwriters
in underwritten offerings of debt securities similar to the Securities, and
confirm the same in writing if and when requested in form and substance
reasonably satisfactory to the underwriters; (ii) obtain the written
opinions of counsel to the Company and written updates thereof in form,
scope and substance reasonably satisfactory to the underwriters, addressed
to the underwriters covering the matters customarily covered in opinions
reasonably requested in underwritten offerings and such other matters as
may be reasonably requested by the managing underwriter or underwriters;
(iii) obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the underwriters from the independent
public accountants of the Company (and, if necessary, any other independent
public accountants of the Company, any subsidiary of the Company or of any
business acquired by the Company, for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Securities and
such other matters as reasonably requested by the underwriters as permitted
by the Statement on Auditing Standards
-20-
No. 72; and (iv) if an underwriting agreement is entered into, include in
such underwriting agreement indemnification provisions and procedures no
less favorable to the sellers and underwriters, if any, than those set
forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the
underwriters (if any). The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(n) If
(1) a Shelf Registration is filed pursuant to Section 3 hereof,
or
(2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period,
make available for inspection by any selling Holder of such Registrable
Notes being sold (with respect to a Shelf Registration filed pursuant to
Section 3 hereof), or each such Participating Broker-Dealer, as the case
may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating Broker-
Dealer (with respect to any such Registration Statement), as the case may
be, or underwriter (collectively, the "Inspectors"), upon written request,
----------
at the offices where normally kept, during reasonable business hours, all
pertinent financial and other records, pertinent corporate documents and
pertinent instruments of the Company and subsidiaries of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable
-------
them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and any of its
subsidiaries to supply all information ("Information") reasonably requested
-----------
by any such Inspector in connection with such due diligence
responsibilities. Each Inspector shall agree in writing that it will keep
the Records and Information confidential and that it will not disclose any
of the Records that the Company determines, in good faith, to be
confidential and notifies the Inspectors in writing are confidential unless
(i) the disclosure of such Records or Information is necessary to avoid or
correct a material misstatement or material omission in such Registration
Statement or Prospectus, (ii) the release of such Records or Information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, or (iii) the information in such Records or Information has
been made generally available to the public other than by an Inspector or
an affiliate of an Inspector; provided, however that prior notice shall be
--------
provided as soon as practicable to
-21-
the Company of the potential disclosure of any information by such
Inspector pursuant to clause (i) or (ii) of this sentence in order to
permit the Company to obtain a protective order (or waive the provisions of
this paragraph (n)).
(o) Provide a trustee for the Exchange Notes and the Private Exchange
Notes, as the case may be, and cause the Indenture or the trust indenture
provided for in Section 2(a) hereof, as the case may be, to be qualified
under the TIA not later than the effective date of the first Registration
Statement relating to the Exchange Notes; and in connection therewith,
cooperate with the trustee under any such indenture and the Holders of the
Securities, to effect such changes (if any) to such indenture as may be
required for such indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use their commercially reasonable efforts to
cause such trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be filed with
the SEC to enable such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any fiscal quarter (or 90 days after
the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Notes are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company,
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(q) Upon consummation of the Exchange Offer or a Private Exchange,
obtain an opinion or opinions of counsel to the Issuers, in a form
customary for underwritten transactions, addressed to the Trustee for the
benefit of all Holders of Securities participating in the Exchange Offer or
the Private Exchange, as the case may be, that the Exchange Notes or
Private Exchange Notes, as the case may be, the related Guarantees and the
relevant indenture constitute legal, valid and binding obligations of the
Company and/or the Guarantors, as applicable, enforceable against each of
them in accordance with their respective terms, subject to customary
exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company (or to
such other
-22-
Person as directed by the Company), in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company shall mark, or
cause to be marked, on such Registrable Notes that such Registrable Notes
are being canceled in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be; in no event shall such Registrable
Notes be marked as paid or otherwise satisfied.
(s) Reasonably cooperate with each seller of Registrable Notes covered
by any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective counsel
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
----
(t) Use their commercially reasonable efforts to take all other steps
reasonably necessary to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement contemplated
hereby.
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such Registrable Notes as the
Company may, from time to time, reasonably request. The Company may exclude from
such registration the Registrable Notes of any seller so long as such seller
fails to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Shelf Registration is being effected agrees
to furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such seller
not materially misleading.
If any such Registration Statement refers to any holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes agrees by its acquisition of such
Registrable Notes, and each Participating Broker-Dealer agrees by its
acquisition of Registrable Notes or
-23-
Exchange Notes to be sold by such Participating Broker-Dealer that, upon actual
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder
or Participating Broker-Dealer will forthwith discontinue disposition of the
Securities covered by such Registration Statement or Prospectus until such
Holder or Participating Broker-Dealer receives copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
------
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Company shall give any such notice,
the Applicable Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers (other than any underwriting
discounts or commissions) shall be borne by the Company, whether or not the
Exchange Offer Registration Statement or any Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) reasonable fees and expenses of compliance
with state securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Securities and determination of the eligibility of the Securities for investment
under the laws of such jurisdictions within the United States (x) where the
Holders are located, in the case of the Exchange Notes, or (y) as provided in
Section 5(h) hereof, in the case of Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including
without limitation, expenses of printing certificates for Securities in a form
eligible for deposit with The Depository Trust Company and of printing
Prospectuses if the printing of Prospectuses is requested by the managing
underwriter or underwriters (if any), or is reasonably requested by the Holders
of a majority in aggregate principal amount of the Registrable Notes included in
any Registration Statement or by any Participating Broker-Dealer in respect of
Securities to be sold during the Applicable Period, as the case may be, (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and, in case of a Shelf Registration, reasonable fees
and disbursements of one special counsel for all of the sellers of Registrable
Notes (exclusive of any counsel retained pursuant to Section 7 hereof), subject
to Section 6(b) hereof, (v) fees and disbursements of all independent certified
public accountants referred to
-24-
in Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Company desires
such insurance, (vii) fees and expenses of all other Persons retained by the
Company, including, without limitation, the Trustee, (viii) internal expenses of
the Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting duties),
(ix) the expense of any annual audit, (x) any fees and expenses incurred in
connection with the listing of the Securities to be registered on any securities
exchange, and the obtaining of a rating of the Securities, in each case, if
applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements. The Holders shall be responsible for
all of their other out-of-pocket expenses incurred in connection with the
registration of the Registrable Notes. The Issuers shall have no obligation to
pay any underwriting fees, discounts or commissions attributable to the sale of
any Registrable Notes.
(b) In connection with any Shelf Registration hereunder, the Company
shall reimburse the Holders of the Registrable Notes being registered in such
registration for the reasonable fees and disbursements of not more than one
counsel (in addition to appropriate local counsel) chosen by the Holders of a
majority in aggregate principal amount of the Registrable Notes to be included
in such Registration Statement. The Holders shall be responsible for all of
their other out-of-pocket expenses incurred in connection with their
registration of the Registrable Notes. The Issuers shall have no obligation to
pay any underwriting fees, discounts or commissions attributable to the sale of
any Registrable Notes.
7. Indemnification
---------------
(a) The Company agrees to indemnify and hold harmless each Holder
participating in a registration hereunder and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, and each Person, if any,
who controls any such Holder or Participating Broker-Dealer within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act, or
is under common control with, or is controlled by, any such Holder or
Participating Broker-Dealer, from and against all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any such Holder or Participating Broker-Dealer or any
such controlling or affiliated Person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto), including all documents incorporated
therein by reference, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supple-
-25-
ments thereto to such Holder or Participating Broker-Dealer), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
-------- -------
that the Company will not be so liable (i) insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Holder furnished to the Company in writing by or on behalf of any selling Holder
expressly for use therein or (ii) insofar as such losses, claims, damages or
liabilities were caused by an untrue statement or omission that was contained or
made in any preliminary Prospectus and corrected in the Prospectus or any
amendment or supplement thereto if (x) the Prospectus does not contain any other
untrue statement or omission of a material fact that was the subject matter of
the related proceeding, (y) any such losses, claims, damages or liabilities
resulted from an action, claim or suit by any Person who purchased Registrable
Notes or Exchange Notes which are the subject thereof from the indemnified party
(as defined) and (z) it is established in the related proceeding that such
indemnified party failed to deliver or provide a copy of the Prospectus (as so
amended or supplemented, if applicable) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange Notes to such
Person if required by applicable law, unless such failure to deliver or provide
a copy of such Prospectus (as so amended or supplemented, if applicable) was a
result of non-compliance by the Company with Section 5 hereof. In connection
with any underwritten offering, the Company will also indemnify the
underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act) to the same extent
as provided above with respect to the indemnification of the Holders and the
Participating Broker-Dealers, if requested in connection with any Registration
Statement.
(b) Each Holder participating in a registration hereunder and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
agrees, severally and not jointly, to indemnify and hold harmless the Company
and the other Holders and Participating Broker-Dealers, and each of their
respective directors, officers who sign the Registration Statement and each
Person, if any, who controls the Company and any other Holder or Participating
Broker-Dealer within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to the Holders and the Participating Broker-Dealers, but only
with reference to information relating to such Holder furnished to the Company
in writing by or on behalf of such Holder expressly for use in any Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
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(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the
"indemnified party") shall promptly notify the Person against whom such
-----------------
indemnity may be sought (the "indemnifying party") in writing and the
------------------
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel
and the indemnifying party has agreed to pay the fees and expenses of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm engaged in accordance with clause (ii)
of the preceding sentence (in addition to any local counsel) for all indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred upon written request and presentation of invoices. In any case
involving the Placement Agents and Persons who control the Placement Agents,
such firm shall be designated in writing by the Placement Agents. In any other
case involving the Holders and such Persons who control Holders, such firm shall
be designated in writing by a majority of affected Holders (measured in terms of
the principal amount of outstanding Securities). In all other cases, such firm
shall be designated by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but,
if settled with such consent or if there be a final non-appealable judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party for such fees and expenses of
counsel in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which such indemnified party is or could have been a party and indemnity
could have been
-27-
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph
(b) of this Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 7(d) are several
in proportion to the respective principal amount of Registrable Notes of such
Holder that were registered pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
--- ----
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the total price at which Registrable Notes were
sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agree-
-28-
ment, (ii) any investigation made by or on behalf of any Participating Broker-
Dealer, any Holder or any Person controlling any Participating Broker-Dealer or
any Holder, or by or on behalf of the Company, its officers or directors or any
Person controlling the Company, (iii) acceptance of any of the Exchange Notes
and (iv) any sale of Registrable Notes pursuant to a Shelf Registration.
8. Rules 144 and 144A
------------------
Each of the Issuers covenants and agrees that it will file the reports
required to be filed by it under the Exchange Act and the rules and regulations
adopted by the SEC thereunder in a timely manner in accordance with the
requirements of the Exchange Act and, if at any time the Issuers are not
required to file such reports, the Issuers will, upon the request of any Holder
or beneficial owner of Registrable Notes, make available such information
necessary to permit sales pursuant to Rule 144A. Each of the Issuers further
covenants and agrees for so long as any Registrable Notes remain outstanding
that it will take such further action as any Holder of Registrable Notes may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Notes without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144(k) under the
Securities Act and Rule 144A.
9. Underwritten Registrations
--------------------------
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and will be reasonably acceptable to the Issuers
and such Holders shall be responsible for all underwriting discounts and
commissions in connection therewith.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
-------------
(a) No Inconsistent Agreements. None of the Issuers has, as of the
--------------------------
date hereof, and none of the Issuers shall, after the date of this Agreement,
enter into any agree-
-29-
ment with respect to any of its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
any of the Issuers' other issued and outstanding securities under any such
agreements. None of the Issuers will enter into any agreement with respect to
any of its securities which will grant to any Person piggyback registration
rights with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. None of the Issuers
---------------------------------------
shall, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely affect the ability of the Holders of
Registrable Notes to include such Registrable Notes in a registration undertaken
pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (I) the Company, and (II)(A) the Holders of not less than a majority
in aggregate principal amount of the then outstanding Registrable Notes and (B)
in circumstances that would adversely affect the Participating Broker-Dealers,
the Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(c) may not
- -------- -------
be amended, modified or supplemented without the prior written consent of each
Holder, each Placement Agent, and each Participating Broker-Dealer (including
any person who was a Holder or Participating Broker-Dealer of Registrable Notes
or Exchange Notes, as the case may be, disposed of pursuant to any Registration
Statement) affected by any such amendment, modification or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without
-------
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or facsimile:
(i) if to a Holder or any Participating Broker-Dealer, at the most
current address of such Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar under the Indenture;
-30-
(ii) if to the Company, at the following address:
Pacer International, Inc.
3746 Mt. Diablo Blvd.
Suite 110
Lafayette, CA 94549
Attention: Donald C. Orris
Telecopy: (925) 299-1939
with a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New, York 10019
Attention: Morton A. Pierce, Esq.
Douglas L. Getter, Esq.
Telecopy: (212) 862-1093
(iii) If to a Placement Agent, at the following address:
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Attention: Joel Feldmann
Telecopy: (212) 761-0358
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005
Attention: John A. Tripodoro, Esq.
Telecopy: (212) 269-5420
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier, and when receipt is
acknowledged by the addressee, if sent by facsimile.
-31-
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(e) Successor and Assigns. This Agreement shall inure to the benefit
---------------------
of and be binding upon the successors and assigns of each of the parties hereto,
the Holders and the Participating Broker-Dealers.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts, and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
------------------------------------------------
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its affiliates
shall not be counted in determining whether such consented approval was given by
the Holders of such required percentage.
-32-
(k) Third-Party Benificiaries. Holders of Registrable Notes and
-------------------------
Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Company on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
-33-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Company
PACER INTERNATIONAL, INC.
By: /s/ Donald C. Orris
_____________________________________
Name: Donald C. Orris
Title: Chairman, President and Chief
Executive Officer
Guarantors
PACER LOGISTICS, INC.
CROSS CON TRANSPORT, INC.
CROSS CON TERMINALS, INC.
PACIFIC MOTOR TRANSPORT COMPANY
PACER EXPRESS, INC.
PACER INTEGRATED LOGISTICS, INC.
PLM ACQUISITION CORPORATION
INTERSTATE CONSOLIDATION SERVICE, INC.
INTERSTATE CONSOLIDATION, INC.
MANUFACTURERS CONSOLIDATION
SERVICE, INC.
INTERMODAL CONTAINER SERVICE, INC.
LEVCON, INC.
MANUFACTURERS CONSOLIDATION SERVICE
OF CANADA, INC.
KEYSTONE TERMINALS ACQUISITION CORP.
By: /s/ Lawrence C. Yarberry
_____________________________________
Name: Lawrence C. Yarberry
Title: Executive Vice President
-34-
PACER INTERNATIONAL RAIL SERVICES LLC
PACER INTERNATIONAL CONSULTING LLC
PACER RAIL SERVICES LLC
By: PACER LOGISTICS, INC.,
as Manager
By: /s/ Lawrence C. Yarberry
_____________________________________
Name: Lawrence C. Yarberry
Title: Executive Vice President
-35-
Confirmed and accepted as of
the date first above written
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Clifton E. Strain
________________________
Name: Clifton E. Strain
Title: Principal
BT ALEX. BROWN INCORPORATED
By: /s/ Bruce Tully
________________________
Name: Bruce Tully
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Jeffrey C. Home
________________________
Name: Jeffrey C. Home
Title: Director
CREDIT LYONNAIS SECURITIES (USA) INC.
By: /s/ David C. Travis
________________________
Name: David C. Travis
Title: Managing Director
-36-
Schedule A
----------
Guarantors
- ----------
PACER LOGISTICS, INC.
CROSS CON TRANSPORT, INC.
CROSS CON TERMINALS, INC.
PACER INTERNATIONAL RAIL SERVICES LLC
PACER INTERNATIONAL CONSULTING LLC
PACER RAIL SERVICES LLC
PACIFIC MOTOR TRANSPORT COMPANY
PACER EXPRESS, INC.
PACER INTEGRATED LOGISTICS, INC.
PLM ACQUISITION CORPORATION
INTERSTATE CONSOLIDATION SERVICE, INC.
INTERSTATE CONSOLIDATION, INC.
MANUFACTURERS CONSOLIDATION SERVICE, INC.
INTERMODAL CONTAINER SERVICE, INC.
LEVCON, INC.
MANUFACTURERS CONSOLIDATION SERVICE OF CANADA, INC.
KEYSTONE TERMINALS ACQUISITION CORP.
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