FOURTH AMENDMENT
TO
CREDIT AGREEMENT
By and Among
RAILTEX, INC.,
THE SEVERAL FINANCIAL INSTITUTIONS
PARTY TO THIS AGREEMENT,
and
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION,
As Agent
Dated as of December 5, 1996
TABLE OF CONTENTS
Page
Section 1 Certain Defined Terms ............................ 1
Section 2 Recitals ......................................... 1
Section 3 Amendments ....................................... 1
Section 4 Ratification of Continued Force and Effect ....... 2
Section 5 Applicable Law ................................... 2
Section 6 Successors and Assigns ........................... 2
Section 7 Counterparts ..................................... 2
Section 8 Effect of Waiver ................................. 3
Section 9 Headings ......................................... 3
Section 10 Non-Application of Chapter 15 of Texas Credit Code 3
Section 11 ENTIRE AGREEMENT ................................. 3
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FOURTH AMENDMENT TO CREDIT AGREEMENT
This is the Fourth Amendment (the "Amendment") dated as of December 5,
1996 to a Credit Agreement, dated as of May 17, 1996, among Xxxxx Fargo Bank
(Texas), National Association (formerly known as First Interstate Bank of Texas,
N.A.), individually and as Agent, National Bank of Canada, New York Branch, ABN
Amro Bank, N.V. - Houston Agency, National City Bank, Kentucky and RailTex, Inc.
(as amended, the "Agreement").
In consideration of the following Recitals, for $10 in hand paid and for
other good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows, intending to be legally
bound:
Section 1. CERTAIN DEFINED TERMS. Capitalized terms used but not defined
herein have the meanings ascribed to them in the Agreement.
Section 2. RECITALS. The Borrower has requested that the Banks delete
Section 3.6(f) of the Agreement relating to a bridge fee for Brazilian
Acquisition Loans, charge a fee for issuing a Letter of Credit in connection
with the transaction referenced to later in this sentence on a basis other than
that provided in the Agreement and permit the Borrower to participate in a
transaction involving the privatization of the Southern Network of Rede
Ferroviaria Federal, S.A. The Agent and the Banks are so to do.
Section 3. AMENDMENTS. The Agreement is amended as follows:
(A) The definitions of "BRAZILIAN EQUITY," "BRAZILIAN TRANSACTION,"
"CONSORTIUM" and "CONSORTIUM DOCUMENTS" are amended in their entirety to read as
follows:
"BRAZILIAN EQUITY" means cash equity of up to $22,000,000 in
RailTex International, which shall permit RailTex International to
invest in Consortiums.
"BRAZILIAN TRANSACTION" means RailTex International's
participation in a Consortium.
"CONSORTIUMS" means the Person or Persons formed pursuant to
Consortium Documents by RailTex International, GP Capital Partners, L.P.
and certain other investors, or any combination thereof, and which,
pursuant to one or more agreements, (a) acquired Rede Ferroviaria
Federal S.A.'s Center - Eastern Network at the June 14, 1996
privatization auction and (b) intends to acquire Rede Ferroviaria
Federal S.A.'s Southern Network at a privatization auction; "CONSORTIUM"
means one of the Consortiums.
"CONSORTIUM DOCUMENTS" means constituent documents of a
Consortium and any railroad operating company formed by such Consortium,
whether the same is a partnership agreement, consortium agreement or
other document, or any combination thereof, as well as any and all other
documents and agreements to which the Borrower, RailTex International or
any Affiliate of the foregoing, or
any combination thereof, is a party that are related, directly or
indirectly, to a Brazilian Transaction.
(B) Subsection (d) of Section 3.6 of the Agreement is amended by
adding the following as the penultimate sentence thereof:
"In respect of the Letter of Credit issued in connection with the second
Brazilian Transaction involving the Southern Network, the letter of
credit fee shall be one-half of one percent of the face amount of such
Letter of Credit, to be shared by the Lenders in proportion to their
respective Commitment Percentages."
(C) Subsection (f) of Section 3.6 of the Agreement is deleted
therefrom in its entirety and subsection (g) is relettered as subsection (f).
(D) Subsection (a) of Section 4.6 of the Agreement is amended by
deleting the reference to "19,500,000" and inserting in lieu thereof the number
"22,000,000."
(E) Subsection (d) of Section 4.6 of the Agreement is amended by
adding in clause (i) the word "applicable" before the word "Consortium."
Section 4. RATIFICATION OF CONTINUED FORCE AND EFFECT. Except as
specifically amended herein, all of the terms and conditions of the Agreement
and all of the Loan Documents executed in connection therewith or contemplated
thereby are and remain in full force and effect in accordance with their
respective terms. All of the terms used herein have the same meanings as set out
in the Agreement, unless amended hereby or unless the context clearly required
otherwise. References in the Agreement to the "Agreement," and the "Credit
Agreement," "hereof," "herein" and the words of similar import shall be deemed
to be references to the Agreement as amended through the Effective Date. Any
reference in any Note or any other Loan Documents to the "Credit Agreement"
shall be deemed to be references to the Agreement as amended through the
Effective Date.
Section 5. APPLICABLE LAW. This Amendment and all other Loan Documents
executed pursuant hereto shall be deemed to have been made and to be performable
in Houston, Xxxxxx County, Texas and shall be governed by and construed in
accordance with the laws of the State of Texas.
Section 6. SUCCESSORS AND ASSIGNS. This Amendment is binding upon and
shall inure to the benefit of the Lenders, the Agent and the Borrower and their
respective successors and assigns, except the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Lenders and the Agent.
Section 7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
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Section 8. EFFECT OF WAIVER. No consent or waiver, express or implied,
by any Lender or the Agent to or for any breach of or deviation from any
covenant, condition or duty by the Borrower shall be deemed a consent or waiver
to or of any other breach of the same or any other covenant, condition or duty.
Section 9. HEADINGS. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 10. NON-APPLICATION OF CHAPTER 15 OF TEXAS CREDIT CODE. The
provisions of Chapter 15 of the Texas Credit Code (Vernon's Annotated Texas
Statutes, Article 5069-15) are specifically declared by the parties not to be
applicable to this Amendment or any of the Loan Documents or the transactions
contemplated hereby.
Section 11. ENTIRE AGREEMENT. THIS AMENDMENT, THE AGREEMENT AND ALL
OTHER INSTRUMENTS, DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN
CONNECTION WITH THIS AMENDMENT REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES
HERETO MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES HERETO.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered effective as of December 5, 1996.
BORROWER:
RAILTEX, INC. Address: 0000 Xxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
By: /s/ XXXXX X. XXXXXX Vice President and
Xxxxx X. Xxxxxx Chief Financial Officer
Vice President and Telephone No. (000) 000-0000
Chief Financial Officer Telecopy No. (000) 000-0000
AGENT:
XXXXX FARGO BANK (TEXAS), Domestic Lending Office and
NATIONAL ASSOCIATION Eurodollar Lending Office
Address: 0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
By: /s/ XXXXXX X. XXXXXXXX Attn: Bennett D. Xxxxxxx
Xxxxxxx X. Xxxxxxx Vice President
Vice President Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
LENDERS:
XXXXX FARGO BANK (TEXAS), Domestic Lending Office and
NATIONAL ASSOCIATION Eurodollar Lending Office
Address: 0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
By: /s/ XXXXXXX X. XXXXXXX Vice President
Xxxxxxx X. Xxxxxxx Telephone No. (000) 000-0000
Vice President Telecopy No. (000) 000-0000
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NATIONAL BANK OF CANADA, Domestic Lending Office and
NEW YORK BRANCH Eurodollar Lending Office
Address: National Bank of Canada,
New York Branch
000 X. 00xx Xxxxxx
By: /s/ XXXXX X. XXXXX Xxx Xxxx, Xxx Xxxx 00000
Xxxxx X. Xxxxx Attn: Xx. Xxxxx Xxxxx
Group Vice President Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
and
With a copy to:
By: /s/ XXXXXXX XXXXX National Bank of Canada
Xxxxxxx Xxxxx 0000 Xxx Xxxxxxx, Xxxxx 0000
Vice President Xxxxxx, Xxxxx 00000
Attn: Mr. Xxxxxxx Xxxxx
Vice President
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
ABN AMRO BANK, N.V. -
HOUSTON AGENCY
By:ABN AMRO NORTH AMERICA, Domestic Lending Office and
INC., as Agent Eurodollar Lending Office
By: /s/ XXXXXX X. XXXX Address: 3 Riverway, Suite 1700
Xxxxxx X. Xxxx Xxxxxxx, Xxxxx 00000
Group Vice President Attn: Xxxxxxx Xxxxxx
Telephone No. (000) 000-0000
and Telecopy No. (000) 000-0000
By: /s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Group Vice President
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