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EXHIBIT 10.35
AMENDMENT NO. 1
THIS AMENDMENT NO. 1 (this "Amendment") dated as of December __, 1998, to
the Credit Agreement referenced below, is by and among RAILWORKS CORPORATION, a
Delaware corporation, the subsidiaries identified herein, the lenders identified
herein, and NATIONSBANK, N.A., as Administrative Agent. Terms used but not
otherwise defined shall have the meanings provided in the Credit Agreement.
WITNESSETH
WHEREAS, a $75 million credit facility has been established in favor of
RAILWORKS CORPORATION, a Delaware corporation (the "Borrower"), pursuant to the
terms of that Credit Agreement dated as of August 4, 1998 (as amended and
modified, the "Credit Agreement") among the Borrower, the Guarantors and Lenders
identified therein, and NationsBank, N.A., as Administrative Agent;
WHEREAS, the 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 is hereby
acknowledged, the parties agree as follows:
1. The Credit Agreement is amended in the following respects:
1.1 In Section 1.1, the following definitions are amended or added to
read as follows:
"Commitment" means the Revolving Commitment, the LOC Commitment
and the Swingline Commitment.
"Interest Payment Date" means (i) as to any Swingline Loan, the
last day of each Interest Period for such Swingline Loan or such other
dates as the Swingline Lender may agree or require, (ii) as to any
Revolving Loan which is a Base Rate Loan, the last day of each March,
June, September and December and the Termination Date and (iii) as to
any Revolving Loan which is a Eurodollar Loan, the last day of each
Interest Period for such Loan, the date of repayment of principal of
such Loan and on the Termination Date, and in addition where the
applicable Interest Period is more than three months, then also on the
date three months from the beginning of the Interest Period, and each
three months thereafter. If an Interest Payment Date falls on a date
which is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding Business Day.
"Interest Period" means (i) as to any Eurodollar Loan, a period
of one, two, three or six months' duration, as the Borrower may elect,
commencing in each case on the date of the borrowing (including
conversions, extensions and renewals) and (ii) as to any Swingline
Loan, a period of such duration as the Borrower may request and the
Swingline Lender may agree in accordance with the provisions of
Section 2.3(b)(i), commencing in each case on the date of borrowing;
provided, however, (A) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be extended to the
next
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succeeding Business Day (where the next succeeding Business Day falls in
the next succeeding calendar month, then on the next preceding Business
Day), (B) no Interest Period shall extend beyond the Termination Date, and
(C) where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest
Period is to end, such Interest Period shall end on the last day of such
calendar month.
"LOAN" or "LOANS" means the Revolving Loans and/or the Swingline
Loans.
"NOTE" or "NOTES" means any Revolving Note and/or the Swingline Note.
"OBLIGATIONS" means, collectively, the Revolving Loans, the LOC
Obligations and the Swingline Loans.
"PARTICIPATION INTEREST" means the purchase by a Lender of a
participation in LOC Obligations as provided in Section 2.2(c), in
Swingline Loans as provided in Section 2.3(b)(iii) and in Revolving Loans
as provided in Section 3.14.
"QUOTED RATE" means, with respect to a Quoted Rate Swingline Loan, the
fixed or floating percentage rate per annum, if any, offered by the
Swingline Lender and accepted by the Borrower in accordance with the
provisions hereof.
"QUOTED RATE SWINGLINE LOAN" means a Swingline Loan bearing interest
at the Quoted Rate.
"SWINGLINE COMMITMENT" means the commitment of the Swingline Lender to
make Swingline Loans in an aggregate principal amount at any time
outstanding up to the Swingline Committed Amount and the commitment of the
Lenders to purchase participation interests in the Swingline Loans up to
their respective Revolving Commitment Percentage as provided in Section
2.3(b)(iii), as such amounts may be reduced from time to time in accordance
with the provisions hereof.
"SWINGLINE COMMITTED AMOUNT" means the amount of the Swingline
Lender's Commitment as specified in Section 2.3(a).
"SWINGLINE LENDER" means NationsBank or its successor.
"SWINGLINE LOAN" means a swingline revolving loan made by the
Swingline Lender pursuant to the provisions of Section 2.3.
"SWINGLINE NOTE" means the promissory note of the Borrower in favor of
the Swingline Lender evidencing the Swingline Loans, in substantially the
form attached hereto as SCHEDULE 2.3(d), as such promissory note may be
amended, modified, supplemented, extended, renewed or replaced from time to
time.
1.2 A new Section 2.3 is added to read as follows:
2.3 SWINGLINE LOAN SUBFACILITY.
(a) SWINGLINE COMMITMENT. During the Commitment Period, subject to
the terms and conditions hereof, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans (each a "SWINGLINE
LOAN" and, collectively, the
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"Swingline Loans") to the Borrower from time to time for the purposes
hereinafter set forth; provided, however, (i) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed TWO MILLION DOLLARS
($2,000,000.00) (the "Swingline Committed Amount"), and (ii) with regard to the
Lenders collectively, the aggregate principal amount of Obligations outstanding
at any time shall not exceed the lesser of (A) the Aggregate Revolving
Committed Amount or (B) the Borrowing Base. Swingline Loans hereunder shall be
made as Base Rate Loans or Quoted Rate Swingline Loans, and may be repaid or
reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a
Swingline Loan advance hereunder it shall give written notice (or
telephonic notice promptly confirmed in writing) to the Swingline
Lender not later than 11:00 A.M. (Charlotte, North Carolina time) on
the Business Day of the requested Swingline Loan advance. Each such
notice shall be irrevocable and shall specify (A) that a Swingline
Loan advance is requested, (B) the date of the requested Swingline
Loan advance (which shall be a Business Day) and (C) the principal
amount of and Interest Period for the Swingline Loan advance
requested. Each Swingline Loan shall have such maturity date as the
Swingline Lender and the Borrower shall agree upon receipt by the
Swingline Lender of any such notice from the Borrower. The Swingline
Lender shall initiate the transfer of funds representing the Swingline
Loan advance to the Borrower by 3:00 P.M. (Charlotte, North Carolina
time) on the Business Day of the requested borrowing. Notwithstanding
the foregoing provisions of this subsection (i), the Borrower and the
Swingline Lender may from time to time agree to make Swingline Loan
advances pursuant to an "auto-borrow" and "zero balance" or other
similar arrangement, subject however to the conditions and limitations
relating to the Swingline Loans set out herein.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in a
minimum principal amount of $1,000,000 and in integral multiples of
$500,000 in excess thereof (or the remaining amount of the Swingline
Committed Amount, if less), provided that in the event that an
"auto-borrow" or "zero balance" or other similar arrangement shall
then be in place with the Swingline Lender, such minimum amounts, if
any, provided by such agreement.
(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) the
maturity date agreed to by the Swingline Lender and the Borrower with
respect to such Loan or (B) the Termination Date. The Swingline Lender
may, at any time, in its sole discretion, by written notice to the
Borrower and the Lenders, demand repayment of its Swingline Loans by
way of a Revolving Loan advance, in which case the Borrower shall be
deemed to have requested a Revolving Loan advance comprised solely of
Base Rate Loans in the amount of such Swingline Loans; provided,
however, that any such demand shall be deemed to have been given one
Business Day prior to the Termination Date and on the date of the
occurrence of any Event of Default described in Section 9.1 and upon
acceleration of the indebtedness hereunder and the exercise of
remedies in accordance with the provisions of Section 9.2. Each Lender
hereby irrevocably agrees to make its pro rata share of each such
Revolving Loan in the amount, in the manner and on the date specified
in the preceding sentence notwithstanding (I) the amount of such
borrowing may
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not comply with the minimum amount for advances of Revolving Loans
otherwise required hereunder, (II) whether any conditions specified in
Section 5.2 are then satisfied, (III) whether a Default or an Event of
Default then exists, (IV) failure of any such request or deemed request for
Revolving Loan to be made by the time otherwise required hereunder, (V)
whether the date of such borrowing is a date on which Revolving Loans are
otherwise permitted to be made hereunder or (VI) any termination of the
Commitments relating thereto immediately prior to or contemporaneously with
such borrowing. In the event that any Revolving Loan cannot for any reason
be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any other Credit Party),
then each Lender hereby agrees that it shall forthwith purchase (as of the
date such borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such Participation Interests in the
outstanding Swingline Loans as shall be necessary to cause each such Lender
to share in such Swingline Loans ratably based upon its Commitment
Percentage of the Revolving Committed Amount (determined before giving
effect to any termination of the Commitments pursuant to Section 3.4),
provided that (A) all interest payable on the Swingline Loans shall be for
the account of the Swingline Lender until the date as of which the
respective Participation Interest is purchased and (B) at the time any
purchase of Participation Interests pursuant to this sentence is actually
made, the purchasing Lender shall be required to pay to the Swingline
Lender, to the extent not paid to the Swingline Lender by the Borrower in
accordance with the terms of subsection (c) below, interest on the
principal amount of Participation Interests purchased for each day from and
including the day upon which such borrowing would otherwise have occurred
to but excluding the date of payment for such Participation Interests, at
the rate equal to the Federal Funds Rate.
(c) Interest on Swingline Loans.
Subject to the provisions of Section 3.1, each Swingline Loan shall bear
interest at a per annum rate equal to (i) if such Swingline Loan is a Base Rate
Loan, the Base Rate plus the Applicable Percentage, or (ii) if such Swingline
Loan is a Quoted Rate Swingline Loan, the Quoted Rate. Interest on Swingline
Loans shall be payable in arrears on each applicable Interest Payment Date (or
at such other times as may be specified herein), unless accelerated sooner
pursuant to Section 9.2.
(d) Swingline Note. The Swingline Loans shall be evidenced by the
Swingline Note.
1.3 Section 3.5(a) is amended by the addition of the following provision to the
end thereof:
(a) Voluntary Prepayments. Loans may be repaid in whole or in part
without premium or penalty; provided that (i) Eurodollar Loans may be prepaid
only upon three (3) Business Days' prior written notice to the Administrative
Agent and must be accompanied by payment of any amounts owing under Section
3.11, and (ii) partial prepayments shall be (A) in the case of Revolving Loans
which are Eurodollar Loans, in a minimum aggregate principal amount of
$2,500,000 and integral multiples of $500,000 in excess thereof, (B) in the case
of Revolving Loans which are Base Rate Loans, in a minimum aggregate principal
amount of $1,000,000 and integral multiples of $100,000 in excess thereof, and
(C) in the case of Swingline Loans, in a minimum aggregate
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: RAILWORKS CORPORATION,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX
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Name:
Title:
GUARANTORS: ALPHA-KEYSTONE ENGINEERING, INC.,
a Pennsylvania corporation
ANNEX RAILROAD BUILDERS, INC.,
an Indiana 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
H.P. XXXXXXXX INC.,
a Pennsylvania corporation
XXXXXXX RAILROAD BUILDERS, INC.,
a Pennsylvania corporation
X.X. XXXXXXXX & COMPANY, INC.,
a New York corporation
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Guarantors
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MERIT RAILROAD CONTRACTORS, INC.,
a Missouri corporation
MIDWEST CONSTRUCTION SERVICES, INC.,
an Indiana corporation
MINNESOTA RAILROAD SERVICE, INC.,
a Tennessee corporation
NEW ENGLAND RAILROAD CONSTRUCTION CO., INC.,
a Connecticut corporation
NORTHERN RAIL SERVICE AND SUPPLY COMPANY, INC.,
a Michigan corporation
R. & M. B. RAIL CO., INC.,
an Indiana corporation
RAILCORP, INC.,
an Ohio corporation
RAILROAD SERVICE, INC.,
a Nevada corporation
RAILROAD SPECIALTIES, INC.,
an Indiana corporation
SOUTHERN INDIANA WOOD PRESERVING CO., INC.,
an Indiana corporation
U.S. TRACKWORKS, INC.,
a Michigan corporation
U.S. RAILWAY SUPPLY, INC.,
an Indiana 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 Guarantors
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LENDERS: NATIONSBANK, N.A.
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By:
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Name: Xxx Xxxxx
Title: Vice President
CRESTAR BANK
By:
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Name: Xxxx Xxxxxxxx
Title: Vice President
SUMMIT BANK
By:
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Name: Xxxx Xxxxxxx
Title: Vice President
