EXHIBIT 10.42
SIXTH 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 September 4, 1998
TABLE OF CONTENTS
PAGE
Section 1. Certain Defined Terms .......................................... 1
Section 2. Recitals ....................................................... 1
Section 3. Amendments ..................................................... 1
Section 4. Conditions Precedent ........................................... 1
Section 5. Ratification of Continued Force and Effect ..................... 1
Section 6. Applicable Law ................................................. 2
Section 7. Successors and Assigns ......................................... 2
Section 8. Counterparts ................................................... 2
Section 9. Effect of Waiver ............................................... 2
Section 10. Headings ....................................................... 2
Section 11. Non-Application of Chapter 346 of Texas Finance Code ........... 2
Section 12. ENTIRE AGREEMENT ............................................... 2
SIXTH AMENDMENT TO CREDIT AGREEMENT
This is the Sixth Amendment (the "Amendment"), dated as of September 4,
1998, 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 of Kentucky and RailTex,
Inc. and previously amended by amendments dated as of June 1, 1996, July 22,
1996, August 13, 1996, December 3, 1996 and November 14, 1997 (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 Agent and the
Lenders (i) reduce the Acquisition Loan Commitments to $70,000,000 and (ii)
increase the Revolving Loan Commitments to $15,000,000. Subject to the terms and
conditions herein contained, the Agent and the Lenders are willing to amend the
Agreement as set forth below in this amendment.
Section 3. AMENDMENTS. The Agreement is amended as follows:
(A) The definition of "Acquisition Loan Commitments" is amended by
deleting the reference to $75,000,000" and inserting in lieu thereof a reference
to "$70,000,000."
(B) The definition of "Revolving Loan Commitments" is amended by deleting
the reference to "$10,000,000" and inserting in lieu thereof a reference to
"$15,000,000."
(C) Schedule 1.2 is deleted from the Agreement and Schedule 1.2 attached
to this Amendment is substituted therefor.
Section 4. CONDITIONS PRECEDENT. The effectiveness of this Amendment
is subject to the following conditions precedent:
(A) Receipt by the Agent of fully signed counterparts of this Amendment,
replacement Revolving Notes for each of the Lenders and replacement Interim
Acquisition Notes for each of the Lenders; and
(B) Delivery of such other documents from the Borrower as the Agent shall
reasonably request.
Section 5. 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 6. 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 7. 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 8. 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.
Section 9. 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 10. HEADINGS. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 11. NON-APPLICATION OF CHAPTER 346 OF TEXAS FINANCE CODE. The
provisions of Chapter 346 of the Texas Finance Code 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 12. 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
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UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered effective as of the date first written above.
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BORROWER:
RAILTEX, INC. Address: 0000 Xxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxx
Telephone No. (000) 000-0000
By:/s/XXXXXX X. XXXXXX Telecopy No. (000) 000-0000
Xxxxxx X. Xxxxxx
Treasurer
Domestic Lending Office and
AGENT: Eurodollar Lending Office
XXXXX FARGO BANK (TEXAS), Address: 1000 Louisiana
NATIONAL ASSOCIATION Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Vice President
Telephone No. (000) 000-0000
By:/s/XXXXXXX X. XXXXXXX Telecopy No. (000) 000-0000
Xxxxxxx X. Xxxxxxx
Vice President
Domestic Lending Office and
LENDERS: Eurodollar Lending Office
XXXXX FARGO BANK (TEXAS), Address: 1000 Louisiana
NATIONAL ASSOCIATION Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Vice President
Telephone No. (000) 000-0000
By:/s/XXXXXXX X. XXXXXXX Telecopy No. (000) 000-0000
Xxxxxxx X. Xxxxxxx
Vice President
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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
Vice President and Manager
With a copy to:
and
National Bank of Canada
0000 Xxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
By:/s/XXXXXXX XXXXX Attn: Mr. Xxxxxxx Xxxxx
Xxxxxxx Xxxxx Vice President
Vice President Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
ABN AMRO BANK, N.V. Domestic Lending Office and
Eurodollar Lending Office
Address: ABN AMRO Bank, N.V.
By:/s/XXXXXX X. XXXX 000 X. XxXxxxx Xx., Xxxxx 000
Xxxxxx X. Xxxx Xxxxxxx, Xxxxxxxx 00000
Group Vice President ATTN: Loan Administrator
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With a copy to:
and
ABN AMRO Bank, N.V.
By:/s/XXXX X. XXXXXXXXXXXXX Three Riverway, Suite 1700
Xxxx X. Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 00000
Assistant Vice President Attn: Xxxxxx X. Xxxx
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
NATIONAL CITY BANK OF KENTUCKY Domestic Lending Office and
Eurodollar Lending Office
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Address: 000 Xxxxx Xxxxx Xxxxxx
By:/s/XXX XXXXXXX Xxxxxxxxxx, Xxxxxxxx 00000
Xxx Xxxxxxx Attn: Xxxxxx X. Xxxxxx, Xx.
Vice President Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
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