EXHIBIT 10.27
SECOND AMENDMENT
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SECOND AMENDMENT (this "Amendment"), dated as of January 7, 2000,
among PACER INTERNATIONAL, INC. (f/k/a LAND TRANSPORT SERVICES, INC.), a
Tennessee corporation (the "Borrower"), the lending institutions party to the
Credit Agreement referred to below (the "Banks"), CREDIT SUISSE FIRST BOSTON, as
Documentation Agent (in such capacity, the "Documentation Agent"), XXXXXX
XXXXXXX SENIOR FUNDING, INC., as Syndication Agent (in such capacity, the
"Syndication Agent") and BANKERS TRUST COMPANY, as Administrative Agent (in such
capacity, the "Administrative Agent" and, together with the Documentation Agent
and Syndication Agent, each, an "Agent" and, collectively, the "Agents").
Unless otherwise indicated, all capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Credit
Agreement referred to below.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Banks and the Agents are parties to a
Credit Agreement, dated as of May 28, 1999 (as amended, modified or supplemented
to, but not including, the date hereof, the "Credit Agreement"); and
WHEREAS, subject to and on the terms and conditions set forth in this
Amendment, the parties hereto wish to amend the Credit Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
8. The definition of "Excess Cash Flow" appearing in Section 11 of the
Credit Agreement is hereby amended by inserting the following new sentence
immediately at the end thereof:
"Notwithstanding anything to the contrary contained above, if Conex is
acquired pursuant to a Permitted Acquisition effected during January, 2000 (and
during the second Excess Cash Flow Payment Period), (x) any amounts which would
otherwise be deducted in connection with the acquisition of Conex pursuant to
preceding clause (b)(iv) of the immediately preceding sentence in the second
Excess Cash Flow Payment Period shall instead be deducted in determining Excess
Cash Flow for the first Excess Cash Flow Payment Period, and shall not again be
deducted in determining Excess Cash Flow for any subsequent Excess Cash Flow
Payment Period and (y) any increase to Adjusted Consolidated Working Capital as
a result of said acquisition of Conex shall be deemed to have occurred prior to
the end of the first Excess Cash Flow Payment Period, and not during the second
Excess Cash Flow Payment Period."
9. The definition of "Excess Cash Flow Payment Period" appearing in
Section 11 of the Credit Agreement is hereby amended by deleting said definition
in its entirety and inserting the following new definition in lieu thereof:
"Excess Cash Flow Payment Period" shall mean (i) with respect to the
repayment required on the first Excess Cash Flow Payment Date, the period
commencing on the Initial Borrowing Date and ending on December 31, 1999 and
(ii) with respect to the repayment required on each subsequent Excess Cash Flow
Payment Date, the immediately preceding fiscal year of the Borrower.
10. In order to induce the Banks to enter into this Amendment, the
Borrower hereby (i) makes each of the representations, warranties and agreements
contained in Section 7 of the Credit Agreement and (ii) represents and warrants
that there exists no Default or Event of Default, in each case on the Second
Amendment Effective Date, both before and after giving effect to this Amendment.
11. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
12. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Agents.
13. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
14. This Amendment shall become effective on the date (the "Second
Amendment Effective Date") when the Borrower and the Banks constituting the
Required Banks shall have signed a copy hereof (whether the same or different
copies) and shall have delivered (including by way of facsimile transmission)
the same to White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx (facsimile number 212-354-8113).
15. From and after the Second Amendment Effective Date, all references to
the Credit Agreement in the Credit Agreement and each of the other Credit
Documents shall be deemed to be references to the Credit Agreement as modified
hereby.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
PACER INTERNATIONAL, INC. (f/k/a Land Transport
Services, Inc.)
By:
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Title:
BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By:
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Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
Individually and as
Syndication Agent
By:
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Title:
CREDIT SUISSE FIRST BOSTON,
Individually and as
Documentation Agent
By:
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Title:
By:
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Title:
BANKBOSTON, N.A.
By:
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Title:
BANK UNITED
By:
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Title:
ABN AMRO BANK N.V.
By:
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Title:
By:
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Title:
BANK ONE, NA (FORMERLY KNOWN AS THE FIRST NATIONAL
BANK OF CHICAGO)
By:
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Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Title:
By:
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Title:
FIRST UNION NATIONAL BANK
By:
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Title:
XXXXXX FINANCIAL
By:
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Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
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Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION
By:
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Title:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:
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Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
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Title:
UNION BANK OF CALIFORNIA, N.A.
By:
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Title:
