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EXHIBIT 10.51
SECOND AMENDMENT
THIS SECOND AMENDMENT (this "Amendment"), dated as of February 13,
2001, to the Credit Agreement referenced below, is by and among RailWorks
Corporation, a Delaware corporation (the "Borrower"), the Subsidiaries of the
Borrower identified on the signature pages hereto (the "Guarantors"), the
Lenders identified on the signature pages hereto and Bank of America, N.A., as
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 $250 million credit facility has been extended to the
Borrower pursuant to the terms of that Amended and Restated Credit Agreement
dated as of April 28, 2000 (as amended, modified and supplemented from time to
time, the "Credit Agreement") among the Borrower, the Guarantors, the Lenders,
First Union National Bank, as Documentation Agent, and Bank of America, 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; and
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 hereto agree as follows:
1. Amendments. The Credit Agreement is amended in the following
respects:
1.1 The following definitions in Section 1.1 of the Credit
Agreement are amended to read as follows:
"Consolidated Senior Leverage Ratio" means, as of the
last day of any fiscal quarter, the ratio of (x)
Consolidated Senior Debt on such day less any
earn-out payments owing under seller financing
obligations to (y) Consolidated EBITDA for the period
of four consecutive fiscal quarters ending as of such
day.
"Consolidated Total Leverage Ratio" means, as of the
last day of any fiscal quarter, the ratio of (x)
Consolidated Total Funded Debt on such day less any
earn-out payments owing under seller financing
obligations to (y) to Consolidated EBITDA for the
period of four consecutive fiscal quarters ending as
of such day.
1.2 The first sentence of Section 3.3(c)(ii)(A) is amended to read
as follows:
Mandatory prepayments made under this Section 3.3 in
respect of Divestitures shall be applied ratably
among the Tranche B Term Loan (to the principal
amortization installments thereof in inverse order of
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maturity) and the Revolving Obligations (with a
corresponding permanent reduction in the Aggregate
Revolving Committed Amount and the Available
Revolving Committed Amount in each case in an amount
equal to all amounts applied to the Revolving
Obligations pursuant to this Section 3.3(c)(ii)(A)).
1.3 Clauses (b) and (c) of Section 3.4 of the Credit Agreement is
renumbered as clauses (c) and (d) thereof, respectively, and a new
clause (b) is added to Section 3.4 of the Credit Agreement to read as
follows:
(b) Mandatory Reductions. The Aggregate
Revolving Committed Amount and the Available
Revolving Committed Amount automatically shall be
permanently reduced by the amount of any prepayment
on the Revolving Obligations pursuant to Section
3.3(c)(ii)(A).
1.4 Clause (a) of Section 7.9 of the Credit Agreement is amended
to read as follows:
(a) Consolidated Total Leverage Ratio. As of the
end of each fiscal quarter of the members of the
Consolidated Group, the Consolidated Total Leverage
Ratio shall not be greater than the ratio set forth
below:
Fiscal Quarter End Ratio
------------------ -----
December 31, 2000 5.75:1.0
March 31, 2001 5.90:1.0
June 30, 2001 5.90:1.0
September 30, 2001 5.10:1.0
December 31, 2001 4.50:1.0
March 31, 2002 4.25:1.0
June 30, 2002 4.25:1.0
September 30, 2002 4.25:1.0
December 31, 2002 and thereafter 4.00:1.0
1.5 Clause (b) of Section 7.9 of the Credit Agreement is amended
to read as follows:
(b) Consolidated Senior Leverage Ratio. As of
the end of each fiscal quarter of the members of the
Consolidated Group, the Consolidated Senior Leverage
Ratio shall not be greater than the ratio set forth
below:
Fiscal Quarter End Ratio
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December 31, 2000 3.00:1.0
March 31, 2001 3.10:1.0
June 30, 2001 3.10:1.0
September 30, 2001 2.75:1.0
December 31, 2001 and thereafter 2.50:1.0
1.6 Clause (c) of Section 7.9 of the Credit Agreement is amended
to read as follows:
(c) As of the end of each fiscal quarter of the
members of the Consolidated Group, Consolidated Net
Worth shall be not less than the sum of (i) $82
million plus (ii) on the last day of each fiscal
quarter to end after December 31, 2000, seventy-five
percent (75%) of
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Consolidated Net Income for the fiscal quarter (but
not less than zero), such increases to be cumulative,
plus (iii) one hundred percent (100%) of any
increases in Consolidated Net Worth resulting from
Equity Transactions occurring after the date of the
First Amendment.
2. FCM Rail Sale. It is acknowledged and agreed that (i)
notwithstanding that the sale by the Borrower of the capital stock of FCM Rail,
Ltd. (the "FCM Rail Sale") shall have been consummated prior to the
effectiveness of this Amendment, the parties hereto agree that the FCM Rail Sale
shall be subject to Section 3.3(c)(ii)(A) of the Credit Agreement and Section
3.4(b) of the Credit Agreement as each such section is amended by this Amendment
(i.e., the Aggregate Revolving Committed Amount and the Available Revolving
Committed Amount shall both be permanently reduced by an amount equal to all
amounts applied to the Revolving Obligations in connection with the FCM Rail
Sale), and (ii) from the date of the FCM Rail Sale, the financial covenants in
Section 7.9(a) [including, without limitation, calculation of the Consolidated
Total Leverage Ratio for the purpose of the definition of "Application
Percentage" set forth in Section 1.1 and calculation of all such financial
covenants for the purposes of Sections 8.1, 8.3 and 8.4] shall be made on a Pro
Forma Basis giving effect to the Divestiture thereof, as provided in Section
1.3.
3. Conditions Precedent. This Amendment shall be effective upon
satisfaction of the following conditions precedent:
(a) receipt by the Administrative Agent of multiple
counterparts of this Amendment executed by the Credit Parties
and the Required Lenders; and
(b) the sale of FCM Rail, Ltd. shall have been
consummated.
4. Representations. The Borrower hereby affirms that the
representations and warranties set forth in the Credit Agreement and the other
Credit Documents are true and correct as of the date hereof (except those which
expressly relate to an earlier period).
5. Release. Each Credit Party hereby represents and warrants that
it has no claims, counterclaims, offsets, or defenses to the Credit Documents or
to the performance of its obligations thereunder. In consideration of the
Lenders' willingness to enter into this Amendment, each Credit Party hereby
releases the Administrative Agent, the Collateral Agent, the Lenders, and the
Administrative Agent's, the Collateral Agent's and the Lenders' respective
officers, employees, representatives, agents, counsel, trustees and directors
from any and all actions, causes of action, claims, demands, damages and
liabilities or whatever kind or nature, in law or in equity, now known or
unknown, suspected or unsuspected, that may exist in connection with any of the
Credit Documents or the Obligations, to the extent that any of the foregoing
arises from any action or failure to act on or prior to the date hereof.
6. Reaffirmation of Guaranty. Each Guarantor (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 such Guarantor's obligations under the Credit Agreement or
the other Credit Documents.
7. No Other Changes. Except as modified hereby, all of the terms
and provisions of the Credit Agreement and the other Credit Documents (including
schedules and exhibits thereto) shall remain in full force and effect.
8. Costs and Expenses. 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.
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9. Counterparts. 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.
10. Governing Law. 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 to be duly executed and delivered as of the date first above
written.
BORROWER: RAILWORKS CORPORATION,
a Delaware corporation
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
GUARANTORS: ALPHA-KEYSTONE ENGINEERING, INC., a Pennsylvania corporation
BIRMINGHAM WOOD, INC., an Alabama corporation
BREAKING TECHNOLOGY CORP., a New York corporation
BREAKING TECHNOLOGY & EQUIPMENT, INC., a New York 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
GANTREX CORPORATION, a Pennsylvania corporation
H.P. XXXXXXXX, INC., a Pennsylvania corporation
HSQ TECHNOLOGY, a California corporation
XXXXXXX RAILROAD BUILDERS, INC., a Pennsylvania corporation
X.X. XXXXXXXX & COMPANY, INC., a New York corporation
M-TRACK ENTERPRISES, INC., a New York corporation
XXXXXX TREATED WOOD, INC., an Alabama corporation
MERIT RAILROAD CONTRACTORS, INC., a Missouri corporation
MIDWEST CONSTRUCTION SERVICES, INC., an Indiana corporation
MIDWEST RAILROAD CONSTRUCTION AND MAINTENANCE
CORPORATION OF WYOMING, a Wyoming 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, INC., a Kansas corporation
NEOSHO INTERNATIONAL, INC., a Kansas corporation
NEW ENGLAND RAILROAD CONSTRUCTION CO.,
a Connecticut corporation
NORTHERN RAIL SERVICE AND SUPPLY COMPANY, INC.,
a Michigan corporation
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each of the foregoing
[SIGNATURE PAGES CONTINUE]
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RAILCORP, INC., an Ohio corporation
RAILWORKS RAIL PRODUCTS & SERVICES, INC., a Kansas corporation
RAILWORKS TRACK SYSTEMS, INC., a Nevada corporation
RAILWORKS TRANSIT, INC., a New York corporation
RAILWORKS WOOD PRODUCTS, INC., a Delaware corporation
RWKS CONSTRUCTION, INC., a Maryland corporation
SOUTHERN INDIANA WOOD PRESERVING CO., INC.,
an Indiana corporation
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
WOOD WASTE ENERGY, INC., a Virginia corporation
X.X. XXXXX CO., INC., a Texas corporation
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each of the foregoing
RAILWORKS TRANSIT SYSTEMS, INC., a Delaware corporation
RAILWORKS CANADA, INC., a Delaware corporation
By:
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Secretary of each of the foregoing
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each of the foregoing
DURA-WOOD LLC, a Delaware limited liability company
By: XXXXXX TREATED WOOD, INC.,
an Alabama corporation, its managing member
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
RAILWORKS TRACK SERVICES, INC., an Indiana corporation
By:
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
[SIGNATURE PAGES CONTINUE]
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LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By:__________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:__________________________
Name:
Title:
SUMMIT BANK
By:__________________________
Name:
Title:
M&T BANK
By:__________________________
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By:__________________________
Name:
Title:
BANK ONE, MICHIGAN
By:__________________________
Name:
Title:
COMERICA BANK
By:__________________________
Name:
Title:
[SIGNATURE PAGES CONTINUE]
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STATE STREET BANK AND TRUST COMPANY,
as Trustee for GENERAL MOTORS WELFARE BENEFITS TRUST
By:__________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as Trustee for
GENERAL MOTORS EMPLOYEES GLOBAL GROUP PENSION TRUST
By:__________________________
Name:
Title:
ALLFIRST BANK
By:__________________________
Name:
Title:
XXXXXX FINANCIAL, INC.
By:__________________________
Name:
Title:
THE PROVIDENT BANK
By:__________________________
Name:
Title:
FOOTHILL INCOME TRUST II, L.P.
By:__________________________
Name:
Title:
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
By:__________________________
Name:
Title:
[SIGNATURE PAGES CONTINUE]
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FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management, Inc.,
as attorney in fact
By:
-----------------------------------------
Name:
Title:
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
By:
-----------------------------------------
Name:
Title:
CERES II FINANCE LTD
By: INVESCO Senior Secured Management, Inc.,
as Sub-Management Agent (Financial)
By:
-----------------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By:
-----------------------------------------
Name:
Title:
XXX XXXXXX CLO I, LIMITED
By:
-----------------------------------------
Name:
Title:
XXX XXXXXX SENIOR INCOME TRUST
By:
-----------------------------------------
Name:
Title:
X.X. XXXXXXX MARKET VALUE FUND, L.P.
By:
-----------------------------------------
Name:
Title:
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