Document


 
 
 
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
 
FORM 8-K
 
 
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
January 11, 2019 (January 9, 2019)
Date of report (Date of earliest event reported)
 
 
ROADRUNNER TRANSPORTATION SYSTEMS, INC.
(Exact Name of Registrant as Specified in Charter)
 
 
 
 
 
 
DELAWARE
 
001-34734
 
20-2454942
(State or Other Jurisdiction
of Incorporation)
 
(Commission
File Number)
 
(IRS Employer
Identification No.)
 
 
 
 
 
1431 Opus Place, Suite 530 Downers Grove, Illinois
 
 
 
60515
(Address of Principal Executive Offices)
 
 
 
(Zip Code)
(414) 615-1500
(Registrant’s telephone number, including area code)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
 
 
 
 
 







Item 1.01.
Entry into a Material Definitive Agreement.

 
 
 
Standby Purchase Agreement Amendment
As previously disclosed on Roadrunner Transportation Systems, Inc.’s (the “Company”) Form 8-K filed with the Securities and Exchange Commission on November 9, 2018, the Company entered into a Standby Purchase Agreement (the “SPA”) on November 8, 2018 with funds affiliated with Elliott Management Corporation (“Elliott”) pursuant to which Elliott agreed to backstop the Company’s contemplated rights offering to raise $450 million. Pursuant to the SPA, Elliott agreed to exercise its basic subscription right in full and purchase all unsubscribed shares of the Company’s common stock in the rights offering. The SPA had certain outside dates of January 31, 2019, including the requirement that the rights offering be closed by January 31, 2019. On January 10, 2019, the Company and Elliott entered into an amendment to the SPA (the “Amendment”) pursuant to which Elliott agreed to move the outside date and the required rights offering closing date from January 31, 2019 to March 1, 2019. The purpose of the Amendment extending the outside date is to accommodate the change in timing for the transaction due entirely to the partial government shutdown.
The foregoing description of the Amendment and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amendment, which is attached hereto as Exhibit 10.48(A).
Investment Agreement Amendment
On January 9, 2019, the Company entered into Amendment No. 4 to Investment Agreement (the “Investment Agreement Amendment”), by and among the Company and Elliott Associates, L.P. and Brockdale Investments LP (collectively, the “Purchasers”), pursuant to which, among other things, the Company and the Purchasers agreed to extend the termination date under that certain Investment Agreement, dated as of March 1, 2018 (the “Investment Agreement”), by and among the Company and the Purchasers, from February 1, 2019 to March 2, 2019. As a result, pursuant to the Investment Agreement, as amended by the Investment Agreement Amendment, the Company may issue and sell to the Purchasers, and the Purchasers may purchase from the Company, on the terms and subject to the conditions set forth in the Investment Agreement (as amended), from time to time until March 2, 2019, the remaining 19,022 shares of the Company’s Series E-1 Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series E-1 Preferred Stock”), at a purchase price of $920 per share.
The foregoing description of the Investment Agreement Amendment and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Investment Agreement Amendment, which is attached hereto as Exhibit 10.35(D).
ABL Facility Amendments
As described in Item 2.03 below, on January 9, 2019 and January 11, 2019, the Company entered into a Seventh Amendment to Credit Agreement and an Eighth Amendment to Credit Agreement, respectively, with BMO Harris Bank, N.A. and certain other lenders. The disclosure provided in Item 2.03 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 1.01.
Item 2.03.
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 
 
 
On January 9, 2019, the Company and certain of its subsidiaries entered into a Seventh Amendment to Credit Agreement (the “Seventh ABL Facility Amendment”) with BMO Harris Bank, N.A., as Administrative Agent and a Lender, JPMorgan Chase Bank N.A., as a Lender, and Wells Fargo Bank, N.A., as a Lender. Pursuant to the Seventh ABL Facility Amendment, the Company’s Credit Agreement, dated July 21, 2017, as previously amended on December 15, 2017, January 30, 2018 and March 14, 2018, August 3, 2018, September 19, 2018, and November 8, 2019, was further amended to, among other things: (i) extend the time period during which the Company is permitted to purchase Series E-1 Preferred Stock under the Investment Agreement (as amended) from January 31, 2019 to the earlier of (a) March 1, 2019 and (b) the occurrence of the rights offering; and (ii) extend the time date by which the Company is required to consummate the rights offering from January 31, 2019 to March 1, 2019.






On January 11, 2019, the Company and certain of its subsidiaries entered into an Eighth Amendment to Credit Agreement (the “Eighth ABL Facility Amendment” and together with the Seventh ABL Facility Amendment, the “ABL Facility Amendments”) with BMO Harris Bank, N.A., as Administrative Agent and a Lender, JPMorgan Chase Bank N.A., as a Lender, and Wells Fargo Bank, N.A., as a Lender. Pursuant to the Eighth ABL Facility Amendment, the Company’s Credit Agreement, dated July 21, 2017, as previously amended on December 15, 2017, January 30, 2018, March 14, 2018, August 3, 2018, September 19, 2018, November 8, 2018, and January 9, 2019, was further amended to, among other things, modify the definition of “Fixed Charge Trigger Period” to reduce the Adjusted Excess Availability requirements until the earlier of (i) the date that is 30 days from the Eighth Amendment Effective Date; and (ii) the Rights Offering Effective Date.
The foregoing description of the terms of the ABL Facility Amendments and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Seventh ABL Facility Amendment and Eighth ABL Facility Amendment, which are attached hereto as Exhibit 10.33(G) and Exhibit 10.33(H), respectively.
Item 3.02.
Unregistered Sales of Equity Securities.
 
 
 
The information contained in Item 1.01 of this Current Report on Form 8-K under the heading Investment Agreement Amendment is incorporated herein by reference.
Item 9.01.
Financial Statements and Exhibits.
 
 
 
 
(a)
Financial Statements of Business Acquired.
 
 
Not applicable.
 
(b)
Pro Forma Financial Information.
 
 
Not applicable.
 
(c)
Shell Company Transactions.
 
 
Not applicable.
 
(d)
Exhibits.
Exhibit
 
Number
 
 
 
 
10.33(G)

10.33(H)
10.35(D)
10.48(A)







SIGNATURES
 
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
 
 
 
 
 
 
 
 
 
ROADRUNNER TRANSPORTATION SYSTEMS, INC.
 
 
 
 
 
 
 
Date: January 11, 2019
 
 
 
By:
/s/ Terence R. Rogers
 
 
 
 
 
Terence R. Rogers
 
 
 
 
 
Chief Financial Officer



roadrunnerseventhamendme
EXECUTION VERSION SEVENTH AMENDMENT TO CREDIT AGREEMENT SEVENTH AMENDMENT TO CREDIT AGREEMENT (this “Seventh Amendment”) dated as of January 9, 2019 among ROADRUNNER TRANSPORTATION SYSTEMS, INC., a Delaware corporation (the “Company”), each of the Subsidiaries of the Company identified as “Subsidiary Guarantors” on the signature pages to the Credit Agreement (the “Subsidiary Guarantors”), the Lenders (as defined below) party hereto and BMO HARRIS BANK N.A., as Administrative Agent (the “Administrative Agent”), each of which is a party to the Existing Credit Agreement (as defined below). WHEREAS, Company, the Subsidiary Guarantors, the financial institutions from time to time party thereto as lenders (the “Lenders”) and the Administrative Agent are parties to that certain Credit Agreement dated as of July 21, 2017 (as amended, supplemented, or otherwise modified from time to time prior to this Seventh Amendment and as in effect immediately prior to the effectiveness of this Seventh Amendment, the “Existing Credit Agreement”, and as amended by this Seventh Amendment and as may be further amended, supplemented or otherwise modified and in effect from time to time, the “Amended Credit Agreement”). WHEREAS, the Company and the Subsidiary Guarantors request that the Lenders and the Administrative Agent amend the Existing Credit Agreement in certain respects, and the Lenders party hereto and the Administrative Agent are willing to so amend the Existing Credit Agreement, as set forth below. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows: Section 1. Definitions. Except as otherwise defined in this Seventh Amendment, terms defined in the Amended Credit Agreement are used herein as defined therein. Section 2. Amendments to the Existing Credit Agreement. From and after the Seventh Amendment Effective Date, the Existing Credit Agreement shall be amended as follows: 2.01. References Generally. References in the Existing Credit Agreement (including references to the Existing Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) and each reference to the Existing Credit Agreement in the other Loan Documents (and indirect references such as “thereunder”, “thereby”, “therein” and “thereof”) shall be deemed to be references to the Existing Credit Agreement as amended hereby. 2.02. Amended Language. (a) Section 1.01 of the Existing Credit Agreement is amended by amending and restating the following defined term as follows: “Second Amendment Series E Preferred Stock” means the “Series E Preferred Stock” as defined in, and issued pursuant to, the Second Amendment Investment Agreement (as amended by Amendment No. 1 to Investment Agreement and Termination of Equity Commitment Letter dated as of August 3, 2018, Amendment No. 2 to Investment Agreement dated as of September 19, 2018, Amendment No. 3 to Investment Agreement dated as of November 8, 2018 and Amendment No. 4 to Investment Agreement dated as of January 9, 2019); provided that (A) the aggregate amount of such Preferred Stock shall not AmericasActive:13038029.3


 
exceed $52,500,000, (B) such Preferred Stock shall be issued in increments of not less than $8,750,000, (C) the Net Cash Proceeds of each issuance of such Preferred Stock shall be applied to prepay Term Loans pursuant to Section 2.06(b)(i)(E) and (D) such Preferred Stock is issued by March 1, 2019. (b) Section 7.21(k) of the Existing Credit Agreement is amended and restated as follows: No later than January 9, 2019, pursuant to Amendment No. 4 dated as of January 9, 2019, the Second Amendment Investment Agreement in respect of the Second Amendment Series E Preferred Stock shall be amended to extend the commitment therein to issue up to $17,500,000 of Second Amendment Series E Preferred Stock from January 31, 2019 to the earlier of (i) March 1, 2019 and (ii) the occurrence of the Rights Offering. (c) Section 5 of the Sixth Amendment to Credit Agreement dated as of November 8, 2018 (the “Sixth Amendment”) among the parties to this Seventh Amendment is amended and restated as follows: Section 5. Conditions Precedent to the Rights Offering Effective Date Amendments. Those amendments in the Amended Credit Agreement that are marked with a footnote that states “Rights Offering Effective Date” (collectively, the “Rights Offering Amendments”) shall become effective as of the date upon which each of the following conditions precedent (collectively, the “Rights Offering Conditions Precedent”) shall be satisfied or waived (the “Rights Offering Effective Date”); provided that if the Rights Offering Conditions Precedent are not satisfied on or prior to March 1, 2019, the Rights Offering Amendments shall be null and void: Section 3. Representations and Warranties of the Loan Parties. The Loan Parties represent and warrant to the Administrative Agent and the Lenders that as of the Seventh Amendment Effective Date: 3.01. each of the representations and warranties set forth in the Amended Credit Agreement and in the other Loan Documents are true and correct in all respects (or in all material respects for such representations and warranties that are not by their terms already qualified as to materiality) as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all respects (or in all material respects for such representations and warranties that are not by their terms already qualified as to materiality) as of such earlier date, and except that for purposes of this Section 3.01, (i) the representations and warranties contained in Section 6.05(a) and (c) of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (a) of Section 7.01 of the Amended Credit Agreement and (ii) the representations and warranties contained in Section 6.05(b) of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (b) of Section 7.01 of the Amended Credit Agreement; 3.02. both immediately before and after giving effect to this Seventh Amendment and the transactions contemplated hereby, no Default (other than the Specified Default) shall have occurred and be continuing, or would result therefrom; and 3.03. both immediately before and after giving effect to this Seventh Amendment and the transactions contemplated hereby, no Default or Event of Default shall have occurred and be continuing, 2


 
or would result therefrom, under the Existing Investment Agreement and/or the Second Amendment Investment Agreement (as amended) or any transactions contemplated thereby, and no fees shall have been paid to any holders of the “Preferred Stock” in connection therewith. Section 4. Conditions Precedent to this Seventh Amendment. This Seventh Amendment shall become effective as of the date, upon which each of the following conditions precedent shall be satisfied or waived (the “Seventh Amendment Effective Date”): 4.01. Execution. The Administrative Agent shall have received counterparts of this Seventh Amendment, executed by the Loan Parties, the Administrative Agent and the Lenders. 4.02. Preferred Stock Consent. The Lenders shall have received confirmation that the holders of the “Preferred Stock” under the Existing Investment Agreement and the Second Amendment Investment Agreement (as amended by (a) Amendment No. 1 to Investment Agreement and Termination of Equity Commitment Letter dated as of August 3, 2018, (b) Amendment No. 2 to Investment Agreement dated as of September 19, 2018, (c) Amendment No. 3 dated as of November 8, 2018 and (d) Amendment No. 4 dated as of January 9, 2019, a copy of which has been attached hereto as Exhibit A) have consented to the Seventh Amendment in form and substance satisfactory to the Lenders. 4.03. Costs and Expenses. The Company shall have paid all reasonable and documented out- of-pocket costs and expenses of the Administrative Agent in connection with this Seventh Amendment. Section 5. Reference to and Effect Upon the Existing Credit Agreement. 5.01. Except as specifically amended or waived above, the Existing Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed. 5.02. The execution, delivery and effectiveness of this Seventh Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender under the Existing Credit Agreement or any Loan Document, nor constitute a waiver of any provision of the Existing Credit Agreement or any Loan Document, except as specifically set forth herein. Section 6. Ratification of Liability. As of the Seventh Amendment Effective Date, the Company and the other Loan Parties, as debtors, grantors, pledgors, guarantors, assignors, or in other similar capacities in which such parties grant liens or security interests in their properties or otherwise act as accommodation parties or guarantors, as the case may be, under the Loan Documents to which they are a party, hereby ratify and reaffirm all of their payment and performance obligations and obligations to indemnify, contingent or otherwise, under each of such Loan Documents to which they are a party, and ratify and reaffirm their grants of liens on or security interests in their properties pursuant to such Loan Documents to which they are a party, respectively, as security for the Obligations, and as of the Seventh Amendment Effective Date, each such Person hereby confirms and agrees that such liens and security interests hereafter secure all of the Obligations, including, without limitation, all additional Obligations hereafter arising or incurred pursuant to or in connection with this Seventh Amendment, the Amended Credit Agreement or any other Loan Document. As of the Seventh Amendment Effective Date, the Company and the other Loan Parties further agree and reaffirm that the Loan Documents to which they are parties now apply to all Obligations as defined in the Amended Credit Agreement (including, without limitation, all additional Obligations hereafter arising or incurred pursuant to or in connection with this Seventh Amendment, the Amended Credit Agreement or any other Loan Document). As of the Seventh Amendment Effective Date, the Company and the other Loan Parties (a) further acknowledge receipt of a copy of this Seventh Amendment, (b) consent to the terms and conditions of same, and (c) agree and 3


 
acknowledge that each of the Loan Documents to which they are a party remain in full force and effect and is hereby ratified and confirmed. Section 7. Miscellaneous. Except as herein provided, the Existing Credit Agreement shall remain unchanged and in full force and effect. This Seventh Amendment is a Loan Document for all purposes of the Amended Credit Agreement. This Seventh Amendment may be executed in any number of counterparts, and by different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a counterpart signature page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart signature page. Section headings used in this Seventh Amendment are for reference only and shall not affect the construction of this Seventh Amendment. Section 8. GOVERNING LAW. THIS SEVENTH AMENDMENT, AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS. Section 9. Release and Waiver. The Loan Parties each do hereby release the Administrative Agent and each of the Lenders and each of their officers, directors, employees, agents, attorneys, personal representatives, successors, predecessors and assigns from all manner of actions, cause and causes of action, suits, deaths, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands, whatsoever, in law or in equity, and particularly, without limiting the generality of the foregoing, in connection with the Amended Credit Agreement and the other Loan Documents and any agreements, documents and instruments relating to the Amended Credit Agreement and the other Loan Documents and the administration of the Amended Credit Agreement and the other Loan Documents, all indebtedness, obligations and liabilities of the Loan Parties to the Administrative Agent or any Lender and any agreements, documents and instruments relating to the Amended Credit Agreement and the other Loan Documents (collectively, the “Claims”), which the Loan Parties now have against the Administrative Agent or any Lender or ever had, or which might be asserted by their heirs, executors, administrators, representatives, agents, successors, or assigns based on any Claims which exist on or at any time prior to the date of this Seventh Amendment. The Loan Parties expressly acknowledge and agree that they have been advised by counsel in connection with this Seventh Amendment and that they each understand that this Section 10 constitutes a general release of the Administrative Agent and the Lenders and that they each intend to be fully and legally bound by the same. The Loan Parties further expressly acknowledge and agree that this general release shall have full force and effect notwithstanding the occurrence of a breach of the terms of this Seventh Amendment or an Event of Default or Default under the Amended Credit Agreement. [signature pages follow] 4


 


 


 


 


 


 
roadrunnereighthamendmen
EXECUTION VERSION EIGHTH AMENDMENT TO CREDIT AGREEMENT EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Eighth Amendment”) dated as of January 11, 2019 among ROADRUNNER TRANSPORTATION SYSTEMS, INC., a Delaware corporation (the “Company”), each of the Subsidiaries of the Company identified as “Subsidiary Guarantors” on the signature pages to the Credit Agreement (the “Subsidiary Guarantors”), the Lenders (as defined below) party hereto and BMO HARRIS BANK N.A., as Administrative Agent (the “Administrative Agent”), each of which is a party to the Existing Credit Agreement (as defined below). WHEREAS, Company, the Subsidiary Guarantors, the financial institutions from time to time party thereto as lenders (the “Lenders”) and the Administrative Agent are parties to that certain Credit Agreement dated as of July 21, 2017 (as amended, supplemented, or otherwise modified from time to time prior to this Eighth Amendment and as in effect immediately prior to the effectiveness of this Eighth Amendment, the “Existing Credit Agreement”, and as amended by this Eighth Amendment and as may be further amended, supplemented or otherwise modified and in effect from time to time, the “Amended Credit Agreement”). WHEREAS, the Company and the Subsidiary Guarantors request that the Lenders and the Administrative Agent amend the Existing Credit Agreement in certain respects, and the Lenders party hereto and the Administrative Agent are willing to so amend the Existing Credit Agreement, as set forth below. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows: Section 1. Definitions. Except as otherwise defined in this Eighth Amendment, terms defined in the Amended Credit Agreement are used herein as defined therein. Section 2. Amendments to the Existing Credit Agreement. From and after the Eighth Amendment Effective Date, the Existing Credit Agreement shall be amended as follows: 2.01. References Generally. References in the Existing Credit Agreement (including references to the Existing Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) and each reference to the Existing Credit Agreement in the other Loan Documents (and indirect references such as “thereunder”, “thereby”, “therein” and “thereof”) shall be deemed to be references to the Existing Credit Agreement as amended hereby. 2.02. Amended Language. (a) Section 1.01 of the Existing Credit Agreement is amended by amending and restating the following defined term as follows: “Fixed Charge Trigger Period” means the period (a) commencing on the day when Adjusted Excess Availability is less than the greater of (i) $17,500,000 and (ii) 10.0% of the Maximum Borrowing Amount and (b) continuing until the day Adjusted Excess Availability exceeds the greater of (i) $17,500,000 and (ii) 10.0% of the Maximum Borrowing Amount for thirty (30) consecutive days; provided that the amounts in clauses (i) and (ii) above shall be as follows for the specified time periods below: AmericasActive:13049198.3


 
Period Dollar Percentage Amount of Maximum Borrowing Amount Eighth $10,000,000 6% Amendment Effective Date until January 25, 2019 January 25, $11,875,000 7% 2019 until February 1, 2019 February 1, $13,750,000 8% 2019 until February 8, 2019 February 8, $15,625,000 9% 2019 until February 15, 2019 February $17,500,000 10% 15, 2019 and thereafter Notwithstanding the foregoing, if the Rights Offering Effective Date occurs during any of the specified time periods above then the specified time periods laid out above shall no longer be in effect. (b) Section 1.01 of the Existing Credit Agreement is amended by adding the following defined term as follows in alphabetical order: “Eighth Amendment Effective Date” means January 11, 2019. Section 3. Representations and Warranties of the Loan Parties. The Loan Parties represent and warrant to the Administrative Agent and the Lenders that as of the Eighth Amendment Effective Date: 3.01. each of the representations and warranties set forth in the Amended Credit Agreement and in the other Loan Documents are true and correct in all respects (or in all material respects for such representations and warranties that are not by their terms already qualified as to materiality) as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all respects (or in all material respects for such representations 2


 
and warranties that are not by their terms already qualified as to materiality) as of such earlier date, and except that for purposes of this Section 3.01, (i) the representations and warranties contained in Section 6.05(a) and (c) of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (a) of Section 7.01 of the Amended Credit Agreement and (ii) the representations and warranties contained in Section 6.05(b) of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clause (b) of Section 7.01 of the Amended Credit Agreement; 3.02. both immediately before and after giving effect to this Eighth Amendment and the transactions contemplated hereby, no Default (other than the Specified Default) shall have occurred and be continuing, or would result therefrom; and 3.03. both immediately before and after giving effect to this Eighth Amendment and the transactions contemplated hereby, no Default or Event of Default shall have occurred and be continuing, or would result therefrom, under the Existing Investment Agreement and/or the Second Amendment Investment Agreement (as amended) or any transactions contemplated thereby, and no fees shall have been paid to any holders of the “Preferred Stock” in connection therewith. Section 4. Conditions Precedent to this Eighth Amendment. This Eighth Amendment shall become effective as of the date, upon which each of the following conditions precedent shall be satisfied or waived (the “Eighth Amendment Effective Date”): 4.01. Execution. The Administrative Agent shall have received counterparts of this Eighth Amendment, executed by the Loan Parties, the Administrative Agent and the Lenders. 4.02. Preferred Stock Consent. The Lenders shall have received confirmation that the holders of the “Preferred Stock” under the Existing Investment Agreement and the Second Amendment Investment Agreement (as amended by (a) Amendment No. 1 to Investment Agreement and Termination of Equity Commitment Letter dated as of August 3, 2018, (b) Amendment No. 2 to Investment Agreement dated as of September 19, 2018, (c) Amendment No. 3 dated as of November 8, 2018 and (d) Amendment No. 4 dated as of January 9, 2019, a copy of which has been attached hereto as Exhibit A) have consented to the Eighth Amendment in form and substance satisfactory to the Lenders. 4.03. Costs and Expenses. The Company shall have paid all reasonable and documented out- of-pocket costs and expenses of the Administrative Agent in connection with this Eighth Amendment. 4.04. Fees. The Company shall pay a fee to BMO in the amount of $300,000, for the account of each of the Lenders, which fee shall be allocated to the Lenders on a pro rata basis in accordance with their respective Commitments. Section 5. Reference to and Effect Upon the Existing Credit Agreement. 5.01. Except as specifically amended or waived above, the Existing Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed. 5.02. The execution, delivery and effectiveness of this Eighth Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender under the Existing Credit Agreement or any Loan Document, nor constitute a waiver of any provision of the Existing Credit Agreement or any Loan Document, except as specifically set forth herein. 3


 
Section 6. Ratification of Liability. As of the Eighth Amendment Effective Date, the Company and the other Loan Parties, as debtors, grantors, pledgors, guarantors, assignors, or in other similar capacities in which such parties grant liens or security interests in their properties or otherwise act as accommodation parties or guarantors, as the case may be, under the Loan Documents to which they are a party, hereby ratify and reaffirm all of their payment and performance obligations and obligations to indemnify, contingent or otherwise, under each of such Loan Documents to which they are a party, and ratify and reaffirm their grants of liens on or security interests in their properties pursuant to such Loan Documents to which they are a party, respectively, as security for the Obligations, and as of the Eighth Amendment Effective Date, each such Person hereby confirms and agrees that such liens and security interests hereafter secure all of the Obligations, including, without limitation, all additional Obligations hereafter arising or incurred pursuant to or in connection with this Eighth Amendment, the Amended Credit Agreement or any other Loan Document. As of the Eighth Amendment Effective Date, the Company and the other Loan Parties further agree and reaffirm that the Loan Documents to which they are parties now apply to all Obligations as defined in the Amended Credit Agreement (including, without limitation, all additional Obligations hereafter arising or incurred pursuant to or in connection with this Eighth Amendment, the Amended Credit Agreement or any other Loan Document). As of the Eighth Amendment Effective Date, the Company and the other Loan Parties (a) further acknowledge receipt of a copy of this Eighth Amendment, (b) consent to the terms and conditions of same, and (c) agree and acknowledge that each of the Loan Documents to which they are a party remain in full force and effect and is hereby ratified and confirmed. Section 7. Miscellaneous. Except as herein provided, the Existing Credit Agreement shall remain unchanged and in full force and effect. This Eighth Amendment is a Loan Document for all purposes of the Amended Credit Agreement. This Eighth Amendment may be executed in any number of counterparts, and by different parties hereto on separate counterpart signature pages, and all such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a counterpart signature page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart signature page. Section headings used in this Eighth Amendment are for reference only and shall not affect the construction of this Eighth Amendment. Section 8. GOVERNING LAW. THIS EIGHTH AMENDMENT, AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS. Section 9. Release and Waiver. The Loan Parties each do hereby release the Administrative Agent and each of the Lenders and each of their officers, directors, employees, agents, attorneys, personal representatives, successors, predecessors and assigns from all manner of actions, cause and causes of action, suits, deaths, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands, whatsoever, in law or in equity, and particularly, without limiting the generality of the foregoing, in connection with the Amended Credit Agreement and the other Loan Documents and any agreements, documents and instruments relating to the Amended Credit Agreement and the other Loan Documents and the administration of the Amended Credit Agreement and the other Loan Documents, all indebtedness, obligations and liabilities of the Loan Parties to the Administrative Agent or any Lender and any agreements, documents and instruments relating to the Amended Credit Agreement and the other Loan Documents (collectively, the “Claims”), which the Loan Parties now have against the Administrative Agent or any Lender or ever had, or which might be asserted by their heirs, executors, administrators, representatives, agents, successors, or assigns based on any Claims which exist on or at any time prior to the date of this Eighth Amendment. The Loan Parties expressly acknowledge and agree that they have been advised by counsel in connection with this Eighth Amendment and that they each 4


 
understand that this Section 10 constitutes a general release of the Administrative Agent and the Lenders and that they each intend to be fully and legally bound by the same. The Loan Parties further expressly acknowledge and agree that this general release shall have full force and effect notwithstanding the occurrence of a breach of the terms of this Eighth Amendment or an Event of Default or Default under the Amended Credit Agreement. [signature pages follow] 5


 
[Signature Page to Eighth Amendment]


 


 


 


 
amendno4investmentagreem


 


 


 
standbypurchaseagreement
STANDBY PURCHASE AGREEMENT AMENDMENT This STANDBY PURCHASE AGREEMENT AMENDMENT (this “Agreement”), dated as of January 10, 2019, is made by and among Roadrunner Transportation Systems, Inc., a Delaware corporation (the “Company”), Elliott Associates, L.P., a Delaware limited partnership (“Elliott Associates”), and Elliott International, L.P., a Cayman Islands, British West Indies limited partnership (“Elliott International” and, collectively with Elliott Associates, “Elliott”). Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the Standby Purchase Agreement (as defined below). WHEREAS, the Company and Elliott previously entered into a Standby Purchase Agreement on November 8, 2018, attached hereto as Annex A (the “SPA”), pursuant to which Elliott agreed to (i) exercise its Basic Subscription Right in full in connection with the Rights Offering and (ii) to the extent that the Rights Offering is not fully subscribed, purchase from the Company, at a price per share equal to the Subscription Price, all unsubscribed shares of Common Stock in the Rights Offering, in accordance with the percentages set forth in Schedule 1 of the SPA; WHEREAS, the SPA provides for an outside date of January 31, 2019; and WHEREAS, the Company and Elliott desire to amend Section 3 and Section 14 of the SPA to provide that all references to January 31, 2019 are replaced with a time and date of 11:59 p.m. Eastern Time on March 1, 2019. NOW, THEREFORE, in consideration of the mutual promises, agreements, representations, warranties, and covenants contained herein, each of the parties hereto hereby agrees as follows: 1. Amendment. The Company and Elliott hereby agree that Section 3 and Section 14 of the SPA shall be amended such that every reference to “January 31, 2019” shall be replaced with “11:59 p.m. Eastern Time on March 1, 2019.” 2. Binding. This Agreement shall be binding on Elliott Associates and Elliott International and their respective affiliates, successors, heirs, personal representatives, and assigns. 3. No Modification. Other than as provided in Section 1 herein, this Agreement shall not be construed to waive or amend any other section or provision of the SPA, which shall remain in full force and effect. 4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. 5. Counterparts. This Agreement may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement. 6. Effectiveness. This Agreement shall be effective on the date first above written. [SIGNATURES BEGIN NEXT PAGE] PHX 332872181v2