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EXHIBIT 10.36
AMENDMENT NO. 2
THIS AMENDMENT NO. 2 (this "Amendment") dated as of November 5, 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 $105 million credit facility has been extended to the
Domestic 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, certain of its
Subsidiaries as Canadian Borrowers, certain of its Subsidiaries as Guarantors,
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 has requested certain modifications to
the Credit Agreement;
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. The Credit Agreement is amended in the following respects:
1.1 The following definitions are added to Section 1.1 of the
Credit Agreement to read as follows:
"Borrowing Base" means, as of any day, an amount
equal to the sum of (i) eighty-five percent (85%) of Eligible
Receivables of the Credit Parties, (ii) eighty-five percent
(85%) of Eligible Receivables Retainage of the Credit Parties
and (iii) sixty percent (60%) of Eligible Inventory of the
Credit Parties, in each case as set forth in the most recent
Borrowing Base Certificate delivered to the Administrative
Agents and the Lenders in accordance with the terms of Section
7.1(c), with adjustments to give effect to Acquisitions and
Divestitures since the date of such Borrowing Base Certificate
on a Pro Forma Basis.
"Intercreditor Agreement" means that certain
Intercreditor Agreement to be entered into by and among Bank
of America, N.A., as Collateral Agent under the Term Loan
Credit
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Agreement, Bank of America, N.A., as Collateral Agent under
this Credit Agreement, and the Credit Parties, as amended or
modified from time to time, in substantially the form of
Exhibit A attached to Amendment No. 2.
"Term Loan Credit Agreement" means that certain $30
million Term Loan Credit Agreement to be entered into by and
among the Domestic Borrower, the Domestic Guarantors, the
lenders party thereto and Bank of America, N.A., as
administrative agent for the lenders, as amended, modified,
extended or renewed.
1.2 In the definition of "Permitted Liens" in Section 1.1, clauses
(xv) and (xvi) are renumbered as clauses (xvi) and (xvii), and a new clause (xv)
is added to read as follows:
(xv) Liens in favor of the administrative agent and
lenders under the Term Loan Credit Agreement securing the
loans and obligations owing under the Term Loan Credit
Agreement on a pari passu basis with the Domestic Obligations
owing under this Credit Agreement, but only to the extent (A)
such Liens are on the same collateral as to which the Lenders
also have a lien and (B) such Liens are subject to the
Intercreditor Agreement.
1.3 The following sentence is add to Section 3.3(b) of the Credit
Agreement immediately following the last sentence thereof:
If at any time the aggregate principal Dollar Amount
of Obligations plus the aggregate principal amount of the term
loan under the Term Loan Credit Agreement shall exceed the
Borrowing Base, the Borrowers shall immediately make payment
on the Loans, on the term loan under the Term Loan Credit
Agreement and/or to a cash collateral account in respect of
the LOC Obligations or the BA Obligations in an amount
sufficient to eliminate the excess.
1.4 Clauses (l) and (m) of Section 8.1 of the Credit Agreement are
renumbered as clauses (m) and (n) thereof, and a new clause (l) is
added thereto to read as follows:
(l) other senior secured Indebtedness of the Domestic
Credit Parties in an aggregate principal amount of up to $30
million incurred pursuant to the Term Loan Credit Agreement;
1.5 Section 8.10 of the Credit Agreement is amended to read as
follows:
Except with respect to (i) prohibitions against other
encumbrances on specific Property encumbered to secure payment
of particular Indebtedness (which Indebtedness relates solely
to such specific Property, and improvements and accretions
thereto, and is otherwise permitted hereby), (ii) the Term
Loan Credit Agreement and (iii) the Senior Subordinated Notes,
enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or
assumption of any Lien upon its properties or assets, whether
now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some
other obligation.
1.5 Clause (k) of Section 9.1 is renumbered as clause (l), and a
new clause (k) is added to read as follows:
(j) The occurrence of an Event of Default under the
Term Loan Credit Agreement;
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2. The Required Lenders hereby consent to the designation in the
Term Loan Credit Agreement that the Indebtedness evidenced thereby shall
constitute "Designated Senior Debt" (as such term is defined in the Senior
Subordinated Notes)).
3. By execution of this Amendment, the Required Lenders authorize
and direct the Administrative Agent, on behalf of the Lenders, to enter into the
Intercreditor Agreement.
4. This Amendment shall be effective as of the date hereof upon
execution of this Amendment by the Credit Parties and the Required Lenders.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
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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
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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
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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
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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/ Xxxxxxx X. Xxxxxxx
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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
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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
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Name: Xxxx X. Xxxxx
Title: Secretary of each of the foregoing
Domestic Guarantors
By: /s/ 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: /s/ Xxxxxxx X. Xxxxxxx
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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/ Xxxxxxxxxxx X. Xxxx
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Name: Xxxxxxxxxxx X. Xxxx
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/ Xxxxxxxxxxx X. Xxxx
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Name: Xxxxxxxxxxx X. Xxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx Xxxx Xxxxxxx
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Name: Xxxxxxx Xxxx Xxxxxxx
Title: SVP
SUMMIT BANK
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FLEET BANK, N.A.
By: /s/ Xxxxx Xxxxx-Pinzan
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Name: Xxxxx Xxxxx-Pinzan
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
BANK ONE OF MICHIGAN
By: /s/ Xxx X. Xxx
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Name: Xxx X. Xxx
Title: Vice President
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M&T BANK
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
CONGRESS FINANCIAL CORPORATION [CANADA]
By: /s/ Xxxxx Engoetz
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Name: Xxxxx Engoetz
Title: President
