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EXHIBIT 4.6
FIRST AMENDMENT
FIRST AMENDMENT, dated as of October 30, 1998 (this "Amendment"), to the Second
Amended and Restated Credit Agreement, dated as of October 10, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among LANDSTAR SYSTEM HOLDINGS, INC., a Delaware corporation (the
"Borrower"), LANDSTAR SYSTEM, INC., a Delaware corporation (the "Parent"), the
Subsidiaries of the Borrower which are signatories hereto, the several banks
And other financial institutions from time to time parties to this agreement
(such banks and other financial institutions other than the Existing Lenders,
the "Lenders") and The Chase Manhattan Bank ("Chase"), as administrative agent
for the Lenders hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Parent, the Subsidiaries of the Borrower which are
signatories hereto, the Lenders and the Agent are parties to the Credit
Agreement; and
WHEREAS, the Borrower has requested that the Lenders agree to amend certain
provisions of the Credit Agreement, and the Lenders are agreeable to such
request upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which
is hereby acknowledged, the Borrower, the Parent, the Subsidiaries of the
Borrower which are signatories hereto and the Agent hereby agree as follows:
1. Definitions. All terms defined in the Credit Agreement shall have such
defined meanings when used herein unless otherwise defined herein.
2. Amendment of Subsection 7.1(a). Subsection 7.1(a) of the Credit Agreement
is hereby amended by deleting it in its entirety and inserting in lieu thereof
the following new subsection 7.1(a):
"7.1(a) Maintenance of Net Worth. Permit Consolidated New Worth on the last
day of any fiscal quarter of the Parent to be less than the sum of
(i) $80,000,000, plus (ii) the gross cash proceeds of any issuance of any
equity securities received by the Parent or any of its Subsidiaries subsequent
to the Closing Date (other than any such cash proceeds received from employees
of the Borrower and its Subsidiaries to whom the amount thereof shall have been
loaned in cash by the Borrower or any of its Subsidiaries) less all legal
expenses, commissions and other fees and expenses incurred or to be incurred
and all federal, state, local and foreign taxes incurred or to be incurred in
connection therewith to the extent such proceeds are included in Consolidated
Net Worth, plus (iii) 50% of Cumulative Consolidated Net Income."
3. Amendment of Subsection 7.10(m). Subsection 7.10(m) of the Credit
Agreement is hereby amended by deleting the Dollar amount "$1,000,000" and
inserting in lieu thereof the Dollar amount "$5,000,000".
4. Amendment of Subsection 7.10. Subsection 7.10 of the Credit
Agreement is hereby amended by adding the following new paragraphs at the end
thereof:
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"(n) loans to its employees for the purpose of exercising employee stock
options to purchase common stock of the Parent, which loans may be
non-recourse."
"(o) loans to its employees to purchase common stock of the Parent, which
loans may be non-recourse, provided all such loans may not exceed $5,000,000
at any one time outstanding."
5. Representations: No Default. On and as of the date hereof, and after giving
effect to this Amendment, the Borrower confirms, reaffirms and restates that
the representations and warranties set forth in Section IV of the Credit
Agreement are true and correct in all material respects, provided that the
references to the Credit Agreement therein shall be deemed to be references
to this Amendment and the Credit Agreement as amended by this Amendment.
6. Conditions to Effectiveness. This Amendment shall become effective on the
date on which the Agent shall received counterparts of this Amendment, duly
executed and delivered by a duly authorized officer of each of the Borrower,
the Parent, each Guarantor which is a party to the Subsidiaries Guarantee and
each of the Required Lenders.
7. Limited Effect. Except as expressly amended herein, the Credit Agreement
shall continue to be, and shall remain, in full force and effect. This
Amendment shall not be deemed to be a waiver of, or consent to, or a
modification or amendment of, any other term or condition of the Credit
Agreement or to prejudice any other right or rights which the Lenders may now
have or may have in the future under or in connection with the Credit Agreement
or any of the instruments or agreements referred to therein, as the same may be
amended from time to time.
8. Costs and Expenses. The Borrower agrees to pay or reimburse the Agent for
all its reasonable and customary out-of-pocket costs and expenses incurred in
connection with this Amendment, including, without limitation, the reasonable
fees and disbursements of its counsel.
9. Counterparts. This Amendment may be executed by one or more of the parties
hereto in any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
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10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed and delivered by their respective duly authorized officers as
of the date first above written.
LANDSTAR SYSTEM HOLDINGS, INC.
By: __________________________
Title: Vice President Finance and Treasurer
LANDSTAR SYSTEM, INC.
By: __________________________
Title: Vice President Finance and Treasurer
THE CHASE MANHATTAN BANK,
As Administrative Agent and as a Lender
By: __________________________
Title