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EXHIBIT 10.2
AMENDMENT NO. 1
THIS AMENDMENT NO. 1 (this "Amendment") dated as of September 29, 1999,
to the Credit Agreement referenced below, is by and among RAILWORKS CORPORATION,
a Delaware corporation (the "Domestic Borrower"), the Subsidiaries of the
Borrower identified herein, the Lenders identified herein, BANK OF AMERICA
CANADA, as Canadian Administrative Agent, and BANK OF AMERICA, N.A., as Domestic
Administrative Agent. Terms used herein but not otherwise defined herein shall
have the meanings provided to such terms in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $90 million credit facility has been extended to the
Borrower and certain of its Subsidiaries pursuant to the terms of that Amended
and Restated Credit Agreement dated as of August 5, 1999 (as amended and
modified, the "Credit Agreement") among the Domestic Borrower, Gantrex RW
Company and RailWorks Canada Company, as Canadian Borrowers, certain other
Subsidiaries of the Domestic Borrower identified therein, the Lenders identified
therein, First Union National Bank, as Documentation Agent, Bank of America
Canada, as Canadian Administrative Agent, and Bank of America, N.A., as Domestic
Administrative Agent;
WHEREAS, the Domestic Borrower issued $125 million in Senior
Subordinated Notes on April 15, 1999 pursuant to the Senior Subordinated Note
Indenture (as defined below);
WHEREAS, the Domestic Borrower has made arrangements to issue an
additional $50 million in Senior Subordinated Notes pursuant to the Senior
Subordinated Note Indenture;
WHEREAS, the Credit Parties have requested certain modifications to the
Credit Agreement in connection with the issuance of the additional $50 million
in Senior Subordinated Notes;
WHEREAS, the requested modifications require the consent of the
Required Lenders;
WHEREAS, the Required Lenders have agreed to the requested
modifications on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Subclause (i) of clause (f) of Section 8.1 of the Credit
Agreement is amended to read as follows:
(i) the Senior Subordinated Notes in an aggregate
principal amount of up to US$175 million (and renewals,
refinancing and refundings of the then outstanding principal
amount the terms of subordination of which shall be identical
in all material respects to the terms of subordination under
the Senior Subordinated Notes (and the indenture relating
thereto) and
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on other terms and conditions no less favorable to the Lenders than
the terms and conditions contained in the Senior Subordinated Notes
(and the indenture relating thereto); and
2. The additional $50 million in Senior Subordinated Notes will be
issued by the Domestic Borrower pursuant to the Indenture dated as of April 7,
1999 among RailWorks Corporation, the guarantors named therein and First Union
National Bank, as Trustee ("Senior Subordinated Note Indenture"). As required in
the definition of "Subordinated Debt," consent is given hereby to the terms of
subordination, and the other terms and conditions, of the additional $50 million
in Senior Subordinated Notes as set forth in the Senior Subordinated Note
Indenture.
3. Certain Property of certain of the Domestic Credit Parties is
subject to the UCC-1 financing statements identified on Schedule A hereto. The
Credit Parties hereby represent and warrant to the Agents and the Lenders that
the Indebtedness secured by such Liens has been paid and satisfied in full. In
reliance on such representation and warranty, the Required Lenders agree to
allow the Credit Parties until December 15, 1999 to deliver to the Domestic
Administrative Agent original UCC-3 termination statements (executed by the
Secured Party) for each of the UCC-1 financing statements identified on Schedule
A hereto. The Credit Parties agree that the failure of the Credit Parties to
deliver such UCC-3 termination statements or to otherwise resolve the issues
relating thereto to the satisfaction of the Domestic Administrative Agent on or
before December 15, 1999 shall constitute an Event of Default under the terms of
the Credit Agreement.
4. Certain Property of Neosho Construction Company, Inc., a Domestic
Subsidiary of the Domestic Borrower, is subject to the UCC-1 financing
statements identified on Schedule B hereto. The Required Lenders agree to allow
the Credit Parties until October 29, 1999 to deliver to the Administrative Agent
original UCC-3 releases (executed by the Secured Party) for each of the UCC-1
financing statements identified on Schedule B hereto. Such UCC-3 releases shall
expressly release from the security interest of the Secured Party all Property
of the Debtor other than fixed assets financed by the Indebtedness secured by
such security interest. The Credit Parties agree that the failure of the Credit
Parties to deliver such UCC-3 releases or to otherwise resolve the issues
relating thereto to the satisfaction of the Domestic Administrative Agent on or
before October 29, 1999 shall constitute an Event of Default under the terms of
the Credit Agreement.
5. Pursuant to that Post-Closing Letter dated as of August 4, 1999 (the
"Post-Closing Letter") between the Domestic Borrower, the Canadian
Administrative Agent and the Domestic Administrative Agent, the Domestic
Administrative Agent, on behalf of the Domestic Lenders, and the Canadian
Administrative Agent, on behalf of the Canadian Lenders, agreed to allow the
Credit Parties until September 3, 1999 to satisfy certain conditions set forth
in the Post-Closing Letter and the Domestic Borrower agreed that the failure to
satisfy all of the conditions set forth in the Post-Closing letter by September
3, 1999 would constitute an Event of Default under the Credit Agreement. The
Credit Parties have not satisfied certain of the conditions set forth in the
Post-Closing Letter; the conditions which have not been satisfied are set forth
on Schedule B hereto. The Required Lenders agree (a) to waive any Default or
Event of Default which may have existed solely as a result of the Credit
Parties' failure to satisfy all of the conditions set forth in the Post-Closing
Letter by September 3, 1999 and (b) to allow the Credit Parties until October
29, 1999 to satisfy the conditions set forth on Schedule B hereto. The Credit
Parties agree that
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the failure of the Credit Parties to satisfy the conditions set forth on
Schedule B hereto or to otherwise resolve the issues relating thereto to the
satisfaction of the Domestic Administrative Agent on or before October 29, 1999
shall constitute an Event of Default under the terms of the Credit Agreement.
6. Certain Property of certain of the Canadian Credit Parties is
subject to the PPSA financing statements identified on Schedule C hereto. The
Credit Parties hereby represent and warrant to the Agents and the Lenders that
the Indebtedness secured by such Liens has been paid and satisfied in full. In
reliance on such representation and warranty, the Required Lenders agree to
allow the Credit Parties until December 15, 1999 to deliver to the Domestic
Administrative Agent original, executed PPSA termination statements for each of
the PPSA financing statements identified on Schedule C hereto. The Credit
Parties agree that the failure of the Credit Parties to deliver such PPSA
termination statements or to otherwise resolve the issues relating thereto to
the satisfaction of the Domestic Administrative Agent on or before December 15,
1999 shall constitute an Event of Default under the terms of the Credit
Agreement.
7. This Amendment shall be effective upon satisfaction of the following
conditions:
(a) execution of this Amendment by the Credit Parties and the
Required Lenders; and
(b) receipt by the Administrative Agent of a certificate
executed by a Responsible Officer of the Domestic Borrower (i)
demonstrating that, after giving effect to the issuance of the
additional $50 million in Senior Subordinated Notes, the Domestic
Borrower will be in compliance with each of the financial covenants in
Section 7.9 of the Credit Agreement and (ii) certifying that, after
giving effect to the issuance of the additional $50 million in Senior
Subordinated Notes, no Default or Event of Default will exist.
8. The Credit Parties hereby affirm (i) the representations and
warranties set out in Section 6 of the Credit Agreement are true and correct as
of the date hereof (except those which expressly relate to an earlier period)
and (ii) no Default or Event of Default presently exists.
9. Each of the Guarantors (i) acknowledges and consents to all of the
terms and conditions of this Amendment, (ii) affirms all of its obligations
under the Credit Documents and (iii) agrees that this Amendment and all
documents executed in connection herewith do not operate to reduce or discharge
the Guarantors' obligations under the Credit Agreement or the other Credit
Documents.
10. The Borrower and the Guarantors, as applicable, affirm the liens
and security interests created and granted in the Credit Agreement and the
Credit Documents and agree that this Amendment shall in no manner adversely
affect or impair such liens and security interests.
11. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (including Schedules and Exhibits) shall remain in full force
and effect.
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12. The Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including without limitation the reasonable fees and expenses
of Xxxxx & Xxx Xxxxx, PLLC.
13. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
14. This Amendment shall be deemed to be a contract made under, and for
all purposes shall be construed in accordance with the laws of the State of New
York.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment No. 1 to be duly executed and delivered as of the date first
above written.
DOMESTIC
BORROWER: RAILWORKS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CANADIAN
BORROWERS: GANTREX RW COMPANY,
a Nova Scotia unlimited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
RAILWORKS CANADA COMPANY,
a Nova Scotia unlimited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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DOMESTIC
GUARANTORS:
ALPHA-KEYSTONE ENGINEERING, INC.,
a Pennsylvania corporation
ANNEX RAILROAD BUILDERS, INC.,
an Indiana corporation
ARMCORE ACQUISITION CORP.,
a Delaware corporation
ARMCORE RAILROAD CONTRACTORS, INC.,
an Illinois corporation
BIRMINGHAM WOOD, INC.,
an Alabama corporation
XXXXXXXX HOLDINGS INC.,
a Delaware corporation
COMTRAK CONSTRUCTION, INC.,
a Georgia corporation
XXXXXX BROTHERS, INC.,
a Washington corporation
CPI CONCRETE PRODUCTS INCORPORATED,
a Tennessee corporation
XXXX XXXXXXXX CONSTRUCTION COMPANY, INC.,
a Texas corporation
FCM RAIL, LTD., a Michigan corporation
F&V METRO CONTRACTING CORP.,
a New York corporation
GANTREX CORPORATION,
a Pennsylvania corporation
H.P. XXXXXXXX INC.,
a Pennsylvania corporation
IMPULSE ENTERPRISES OF NEW YORK, INC.,
a New York corporation
XXXXXXX RAILROAD BUILDERS, INC.,
a Pennsylvania corporation
M-TRACK ENTERPRISES, INC.,
a New York corporation
XXXXXX TREATED WOOD, INC.,
an Alabama corporation
MERIT RAILROAD CONTRACTORS, INC.,
a Missouri corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
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MIDWEST CONSTRUCTION SERVICES, INC.,
an Indiana corporation
MIDWEST RAILROAD CONSTRUCTION & MAINTENANCE
CORPORATION OF WYOMING, a Wyoming corporation
MIDWEST RW, INC.,
a Delaware corporation
MINNESOTA RAILROAD SERVICE, INC.,
a Tennessee corporation
NEOSHO ASIA, INC.,
a Kansas corporation
NEOSHO CENTRAL AMERICA, INC.,
a Kansas corporation
NEOSHO CONSTRUCTION COMPANY, INCORPORATED,
a Kansas corporation
NEOSHO CONTRACTORS, INC.,
a Wyoming corporation
NEOSHO INCORPORATED,
a Kansas corporation
NEOSHO INTERNATIONAL, INC.,
a Kansas corporation
NEW ENGLAND RAILROAD CONSTRUCTION CO., INC.,
a Connecticut corporation
NORTHERN RAIL SERVICE AND SUPPLY COMPANY, INC.,
a Michigan corporation
XXXXXXX RAILWAY SHOPS, INC.,
a Kansas corporation
R. & M. B. RAIL CO., INC.,
an Indiana corporation
RAILCORP, INC.,
an Ohio corporation
RAILROAD RESOURCES, INC.,
a Missouri corporation
RAILROAD SERVICE, INC.,
a Nevada corporation
RAILROAD SPECIALTIES, INC.,
an Indiana corporation
SOUTHERN INDIANA WOOD PRESERVING CO., INC.,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
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U.S. RAILWAY SUPPLY, INC.,
an Indiana corporation
U.S. TRACKWORKS, INC.,
a Michigan corporation
V&R ELECTRICAL CONTRACTORS, INC.,
a New York corporation
WM. X. XXXXX CONSTRUCTION CO., INC.,
a Texas corporation
WM. X. XXXXX RERAILING SERVICES, INC.,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
X.X. XXXXXXXX & COMPANY, INC.,
a New York corporation
By: /s/ C. Xxxxxxx Xxxxx
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Name: C. Xxxxxxx Xxxxx
Title: Chief Executive Officer and President
F&V METRO RW, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Secretary
GANTREX RW, INC.,
a Delaware corporation
GANTREX SYSTEMS, INC.,
a Delaware corporation
RAILWORKS CANADA, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary of each of the foregoing
Domestic Guarantors
By: Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
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CANADIAN
GUARANTORS:
GANTREX GROUP, LTD.,
an Ontario corporation
GANTREX HOLDINGS-CANADA, INC.,
a Nova Scotia corporation
GANTREX LIMITED,
an Ontario corporation
GANTREX SYSTEMS LIMITED,
an Ontario corporation
PACIFIC NORTHERN RAIL CONTRACTORS CORP.,
a British Columbia company
PACIFIC NORTHERN RAIL HOLDINGS LTD.,
a British Columbia company
PACIFIC NORTHERN RAIL RW, INCORPORATED,
a Nova Scotia corporation
PNR LEASING LTD.,
a British Columbia company
PNR INVESTMENTS LTD.,
a British Columbia company
By: Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Canadian Guarantors
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LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a Lender
and in its capacity as Domestic Administrative Agent
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA CANADA,
individually in its capacity as a Lender
and in its capacity as Canadian Administrative Agent
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx Xxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxx Xxxxxxx
Title: Senior Vice President
SUMMIT BANK
By:
----------------------------------------
Name:
Title:
FLEET BANK, N.A.
By:
----------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By:
----------------------------------------
Name:
Title:
BANK ONE OF MICHIGAN
By:
----------------------------------------
Name:
Title:
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M&T BANK
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
CONGRESS FINANCIAL CORPORATION [CANADA]
By:
----------------------------------
Name:
Title:
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Schedule A
to Amendment No. 1
RailWorks Corporation
UCC-1 Financing Statements to be Terminated
1. Filing Jurisdiction: Indiana Secretary of State
Debtor: Annex Railroad Builders, Inc.
Secured Party: First Bank and Trust Company
Filing No.: 1308428
Filing Date: 11/7/86
2. Filing Jurisdiction: Alabama Secretary of State
Debtor: Birmingham Wood, Inc.
Secured Party: First Commercial Bank
Filing No.: B89-01225
Filing Date: 7/27/89
3. Filing Jurisdiction: New York Secretary of State
Debtors: F&V Metro Contracting Corp.
Impulse Enterprises of New York, Inc.
V&R Electrical Contractors, Inc.
Secured Party: Fleet Bank, N.A.
Filing No.: 087915
Filing Date: 4/29/97
4. Filing Jurisdiction: New York Secretary of State
Debtors: F&V Metro Contracting Corp.
Impulse Enterprises of New York, Inc.
V&R Electrical Contractors, Inc.
Secured Party: Atlantic Bank of New York
Filing No.: 097835
Filing Date: 5/14/97
5. Filing Jurisdiction: Suffolk County, New York
Debtors: F&V Metro Contracting Corp.
Impulse Enterprises of New York, Inc.
V&R Electrical Contractors, Inc.
Secured Party: Fleet Bank, N.A.
Filing No.: 97-07583
Filing Date: 5/1/97
6. Filing Jurisdiction: Suffolk County, New York
Debtors: F&V Metro Contracting Corp.
Impulse Enterprises of New York, Inc.
V&R Electrical Contractors, Inc.
Secured Party: Atlantic Bank of New York
Filing No.: 97-08392
Filing Date: 5/14/97
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7. Filing Jurisdiction: Alabama Secretary of State
Debtor: XxXxxx Treated Wood, Inc.
Secured Party: First Commercial Bank
Filing No.: B92-23428
Filing Date: 6/30/92
8. Filing Jurisdiction: Wyoming Secretary of State
Debtors: MidWest Railroad Construction
and Maintenance Corporation of
Wyoming
Secured Party: Grand National Bank
Filing No.: 96163131B09
Filing Date: 6/11/96
9. Filing Jurisdiction: Indiana Secretary of State
Debtor: Railroad Specialties, Inc.
Secured Party: National City Bank, Indiana
Filing No.: 2219576
Filing Date: 10/21/98
10. Filing Jurisdiction: Queens County, New York
Debtor: Xxxxxxx Electric, Inc.
Secured Party: Xxxxxxx Xxxxxx
Filing No.: 94PQ14500
Filing Date: 9/8/94
11. Filing Jurisdiction: Indiana Secretary of State
Debtor: Southern Indiana Wood Preserving
Secured Party: Key Bank National Association
Filing No.: 2202862
Filing Date: 7/13/98
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Schedule B
to Amendment No. 1
RailWorks Corporation
UCC-1 Financing Statements to be Terminated
1. Filing Jurisdiction: Kansas Secretary of State
Debtor: Neosho Construction Company, Inc.
Secured Party: Commerce Bank and Trust
Filing No.: 2059797
Filing Date: 9/13/94
2. Filing Jurisdiction: Kansas Secretary of State
Debtor: Neosho Construction Company, Inc.
Secured Party: Commerce Bank and Trust
Filing No.: 2221291
Filing Date: 2/26/96
3. Filing Jurisdiction: Kansas Secretary of State
Debtor: Neosho Construction Company, Inc.
Secured Party: Commerce Bank and Trust
Filing No.: 2508924
Filing Date: 11/25/98
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Schedule B
to Amendment No. 1
RailWorks Corporation
Unsatisfied Conditions in Post-Closing Letter
1. Receipt by the Domestic Administrative Agent of opinions of counsel to the
Canadian Credit Parties relating to the Credit Documents and the transactions
contemplated thereby, in each case in form and substance reasonably satisfactory
to the Domestic Administrative Agent and each of the Canadian Lenders.
2. Receipt by the Domestic Administrative Agent of the corporate documents
required by Section 5.1(f) of the Credit Agreement for each of the Canadian
Credit Parties (other than the Domestic Borrower).
3. Receipt by the Collateral Agent of original stock certificates and related
stock powers (in each case conforming to the requirements of the Canadian Pledge
Agreement) evidencing the Pledged Stock (as defined in the Canadian Pledge
Agreement) of Gantrex Group, Ltd. (the issuer thereof is Gantrex Systems Ltd.).
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Schedule C
to Amendment No. 1
RailWorks Corporation
PPSA Financing Statements to be Terminated
1. Filing Jurisdiction: Ontario
Debtors: Gantrex Limited
Gantrex Systems Limited
Secured Party: London Guarantee Insurance Company
File No.: 838814292
Reg. No.: 19990309 1358 6055 0050
Expiry Date: 3/9/08
2. Filing Jurisdiction: Ontario
Debtor: Pacific Northern Rail Contractors Holdings Ltd.
Secured Party: Royal Bank of Canada
File No.: 000000000
Reg. No.: 19980422 1808 1531 5074
Expiry Date: 4/22/03
3. Filing Jurisdiction: Ontario
Debtor: Pacific Northern Rail Contractors Corp.
Secured Party: Royal Bank of Canada
File No.: 000000000
Reg. No.: 19980422 1808 1531 5073
Expiry Date: 4/22/03
4. Filing Jurisdiction: British Columbia
Debtor: Pacific Northern Rail Contractors Holdings Ltd.
Secured Party: Royal Bank of Canada
Base Reg. No.: 0000000
Reg. Date: 1/29/98
Expiry Date: 1/29/03
5. Filing Jurisdiction: British Columbia
Debtor: Pacific Northern Rail Contractors Corp.
Secured Party: Pacific Northern Rail Contractors Holdings Ltd.
Base Reg. No.: 6530385
Reg. Date: 8/6/96
Expiry Date: 8/6/11
6. Filing Jurisdiction: British Columbia
Debtor: Pacific Northern Rail Contractors Corp.
Secured Party: Pacific Northern Rail Contractors Holdings Ltd.
Base Reg. No.: 6907125
Reg. Date: 3/13/97
Expiry Date: 3/13/12
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7. Filing Jurisdiction: British Columbia
Debtor: Pacific Northern Rail Contractors Corp.
Secured Party: Royal Bank of Canada
Base Reg. No.: 0000000
Reg. Date: 1/29/98
Expiry Date: 1/29/03
