W I T N E S S E T H:
Exhibit 10.86
EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO.1 dated as of February 28, 2003 to the CREDIT AGREEMENT,
dated as of May 23, 2002, among RAILAMERICA, INC., PALM BEACH RAIL HOLDING,
INC., RAILAMERICA TRANSPORTATION CORP., RAILAMERICA CANADA CORP., RAILINK CANADA
LTD., RAILAMERICA AUSTRALIA FINANCE PTY., LTD., FREIGHT VICTORIA LIMITED,
RAILAMERICA AUSTRALIA PTY., LTD. (collectively, the "Borrowers"), financial
institutions and other Persons from time to time parties thereto, UBS WARBURG
LLC, and XXXXXX XXXXXXX SENIOR FUNDING, INC., as Joint Lead Arrangers and
Bookrunners, XXXXXX XXXXXXX SENIOR FUNDING, INC., as the Syndication Agent for
the Lenders, UBS AG, STAMFORD BRANCH, as Administrative Agent for the Lenders,
THE BANK OF NOVA SCOTIA and CREDIT LYONNAIS, NEW YORK BRANCH, as Documentation
Agents for the Lenders and THE BANK OF NOVA SCOTIA, as Collateral Agent for the
Lenders.
W I T N E S S E T H:
WHEREAS, the parties hereto are party to the Credit Agreement described
above (as in effect immediately prior to the effectiveness hereof, the "Credit
Agreement");
WHEREAS, the Company has advised the Lenders that it has undertaken, and
intends to undertake, certain tax-related restructurings and related
transactions with respect to certain of its Australian and Canadian
Subsidiaries, all as further described on Exhibit A hereto (the "Restructuring
Transactions"); and
WHEREAS, the parties hereto wish to make certain technical amendments to
the Credit Agreement to permit the Restructuring Transactions and to waive any
technical Defaults which may have arisen prior to the date hereof with respect
thereto;
NOW, THEREFORE, the parties hereto agree as follows.
Section 1. Definitions. Unless otherwise specifically defined in the
recitals above, each term used herein which is defined in the Credit Agreement
shall have the meaning assigned to such term in the Credit Agreement. Each
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar
reference
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contained in the Credit Agreement shall, on and after the effectiveness of this
Amendment, refer to the Credit Agreement as amended hereby.
Section 2. Subordinated Debt. The definition of "Subordinated Debt" in
Section 1.1 of the Credit Agreement is amended by inserting after "Senior
Subordinated Notes" the words "but excluding any Indebtedness owed to Holdings,
Intermediate Holdings, the Company or any Restricted Subsidiary".
Section 3. Capital Stock of RAAPL. Section 7.2.11 of the Credit Agreement
is amended by inserting at the beginning of clause (d) thereof the letter "(i)"
and by inserting, immediately after "Domestic Restricted Subsidiaries" in such
clause (d) the following: ", or (ii) the one-time transfer by the Australian
Term Borrower of one share of the Capital Stock of RAAPL to an individual who is
a Related Party".
Section 4. Amendments to Organic Documents. Section 7.2.12 of the Credit
Agreement is amended by replacing paragraph (b) thereof to read in its entirety
as follows:
(b) the Organic Documents, except to the extent that such amendment,
supplement, waiver or other modification or forebearance pursuant to such
documents could not reasonably be expected to materially adversely affect
the rights and remedies of any Secured Party under any Loan Documents or
the ability of any Obligor to perform its Obligations under any Loan
Document, it being understood that the amendments to the Organic Documents
arising out of certain restructuring and tax-related transactions
disclosed to the Lenders on or prior to February 28, 2003 shall not be
considered to have had such a materially adverse affect.
Section 5. Transactions With Affiliates. Section 7.2.13 of the Credit
Agreement is amended by adding immediately after "Affiliates" the words "(other
than the transaction permitted by Section 7.2.11(d)(ii))".
Section 6. Waiver of Defaults. The Lenders hereby waive any Default or
Event of Default solely to the extent that such Default or Event of Default is a
result of any noncompliance by the Company with Section 7.2.12 arising prior to
the date of effectiveness hereof as a result of any of the Restructuring
Transactions. Other than as specifically provided herein, this Amendment shall
not operate as a waiver or amendment of any right, power or privilege of the
Lenders under the Credit Agreement or of any other term or condition of the
Credit Agreement, nor shall the entering into of this Amendment preclude the
Lenders from refusing to enter into any further waivers or amendments with
respect to the Credit Agreement.
Section 7. Representations and Warranties. The Company represents and
warrants that (i) the representations and warranties set forth in Article VI of
the Credit Agreement will be true and correct as of the effective date of this
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Amendment and (ii) after giving effect to Section 5 hereof, no Default will have
occurred and be continuing on such date.
Section 8. Fees and expenses. Each of Holdings, Intermediate Holdings and
the Borrower agrees that it will comply with its obligations under Section 11.3
of the Credit Agreement with respect to costs and expenses arising in connection
with this Amendment.
Section 9. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 10. Counterparts; Effectiveness. (a) This Amendment may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
(b) This Amendment shall become effective upon receipt by the
Administrative Agent of duly executed counterparts hereof signed by Holdings,
Intermediate Holdings, the Borrowers and the Required Lenders (or, in the case
of any such party as to which an executed counterpart or consent shall not have
been received, the Administrative Agent shall have received telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof or consent hereto by such party).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
RAILAMERICA, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Vice-President & Treasurer
4
PALM BEACH RAIL HOLDING, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Vice-President
5
RAILAMERICA TRANSPORTATION CORP.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Vice-President
6
RAILAMERICA CANADA CORP.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Vice-President
7
RAILINK CANADA LTD.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Vice-President
8
RAILAMERICA AUSTRALIA FINANCE PTY.
LTD.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
9
FREIGHT VICTORIA LIMITED
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
10
RAILAMERICA AUSTRALIA PTY. LTD.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
11
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Director
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Associate Director, Banking
Products Services, US
00
XXXXXXX XXXXXX CLO LTD.
By: Blackstone Debt Advisors L.P., as
Collateral Manager
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
13
CITIGROUP INVESTMENTS
CORPORATE LOAN FUND INC.
By: Travelers Asset Management
International Company LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
14
COLUMBUS LOAN FUNDING LTD.
By: Travelers Asset Management
International Company LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Investment Officer
15
PROMETHEUS INVESTMENT FUNDING
NO. 1 LTD.
By: HVB Credit Advisors LLC
By: /s/ Xxx Xxx
------------------------------------
Name: Xxx Xxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Managing Director
Chief Investment Officer
16
PROMETHEUS INVESTMENT FUNDING
NO. 2 LTD.
By: HVB Credit Advisors LLC
By: /s/ Xxx Xxx
------------------------------------
Name: Xxx Xxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Managing Director
Chief Investment Officer
17
DENALI CAPITAL CLO I, LTD.
By: Denali Capital LLC
As portfolio manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X Xxxxxxx
Title: Chief Credit Officer
18
DENALI CAPITAL CLO II, LTD.
By: Denali Capital LLC
As portfolio manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
19
DENALI CAPITAL CLO III, LTD.
By: Denali Capital LLC
As portfolio manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
20
AMMC CDO II, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
21
XXXXX FARGO BANK TEXAS,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
22
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
23
NATIONWIDE MUTUAL INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
24
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X Xxxxx
Title: Vice President
00
XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Comptroller
26
LCM I LIMITED PARTNERSHIP
By: Lyon Capital Management LLC, as
Attorney-in-Fact
By: /s/ Farboud Tavangar
------------------------------------
Name: Farboud Tavangar
Title: Lyon Capital Management
LLC, Senior Portfolio Manager
27
RZB FINANCE LLC
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Group Vice President
28
FRANKLIN FLOATING RATE TRUST
FRANKLIN FLOATING RATE DAILY ACCESS
FUND
By: /s/ Xxxxxxx X'Xxxxxxx
------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
29
FRANKLIN CLO II, LIMITED
FRANKLIN CLO III, LIMITED
By: /s/ Xxxxxxx X'Xxxxxxx
------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
30
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By: /s/ Xxx Xxxxx, Xxxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxx, Xxxx Xxxxxxxx
Title: Authorized Signatory
31
SEQUILS - GLACE BAY, LTD.
By: The Royal Bank of Canada, as
Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Partner
32
KATONAH III, LTD.
By: /s/ Xxxxx Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx Xxxxx
Title: Authorized Officer
Katonah Capital, L.L.C.,
as Manager
33
JUPITER FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Agent
34
STANWICH LOAN FUNDING LLC
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
35
WINGED FOOT FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Agent
36
LONGHORN CDO II, LTD.
By: Xxxxxxx Xxxxx Investment Managers,
L.P., as Investment Advisor
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
37
HARBOUR TOWN FUNDING LLC
By: /s/ Xxx X. Xxxxxx
------------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
38
RACE POINT CLO, LIMITED
By: Sankaty Advisors, LLC, as
Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
39
GREAT POINT CLO 1999-1 LTD.
By: Sankaty Advisors, LLC, as
Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
40
CASTLE HILL II - INGOTS, LTD.
By: Sankaty Advisors, LLC, as
Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
41
CASTLE HILL I - INGOTS, LTD.
By: Sankaty Advisors, LLC, as
Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
00
XXXXX XXXXX XX XXX 0000-0 LTD.
By: Sankaty Advisors, LLC, as
Collateral Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
43
SANKATY HIGH YIELD PARTNERS III,
L.P.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
44
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx H, Xxxxxx
Title: Vice President
45
AIMCO CLO SERIES 2001-A
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
46
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
47
AIMCO CDO SERIES 2000-A
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
00
XXXXXXXX XXXX XX XXXXXX
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Account Manager
49
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx Xxx
------------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President
50
SUNAMERICA LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Agent
51
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
52
GALAXY CLO, 2003-1, LTD.
By: CIBC Inc., as Agent
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
53
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate
54
KZH SOLEIL LLC
By: /s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
55
KZH SOLEIL-2 LLC
By: /s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
56
NOMURA BOND & LOAN FUND
By: UFJ Trust Company of New York, as
Trustee
By: Nomura Corporate Research
and Asset Management Inc., as
Attorney-in-Fact
By: /s/ Xxxxxxxxx XxxXxxx
------------------------------------
Name: Xxxxxxxxx XxxXxxx
Title: Vice President
00
XXXX XXXX MASTER TRUST II
By: Fleet National Bank, as Trust
Administrator, with respect to
Series Eclipse
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
58
ALLIED IRISH BANK PLC
By: /s/ Mags Xxxxxxx, Xxxxxxx X'Xxxxxx
------------------------------------
Name: Mags Xxxxxxx,
Xxxxxxx X'Xxxxxx
Title: Vice President, Vice
President
59
AIB DEBT MANAGEMENT PLC
By: /s/ Mags Xxxxxxx, Xxxxxxx X'Xxxxxx
------------------------------------
Name: Mags Xxxxxxx,
Xxxxxxx X'Xxxxxx
Title: Vice President, Vice
President
60
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx Tiffen
------------------------------------
Name: Xxxxxx Tiffen
Title: Managing Director
61
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx Tiffen
------------------------------------
Name: Xxxxxx Tiffen
Title: Managing Director
62
KZH CNC LLC
By: /s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
63
KZH PONDVIEW LLC
By: /s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx xxx
Title: Authorized Agent
64
KZH WATERSIDE LLC
By: /s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
65
