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EXHIBIT 10.52
THIRD AMENDMENT
THIS THIRD AMENDMENT (this "Amendment"), dated as of June 18, 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 (the "Lenders") and Bank of America,
N.A., as Administrative Agent (the "Administrative Agent"). Terms used herein
but not otherwise defined herein shall have the meanings provided to such terms
in the Credit Agreement (defined below).
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 certain Amended and Restated Credit
Agreement dated as of April 28, 2000 among the Borrower, the Guarantors, the
Lenders, First Union National Bank, as Documentation Agent, and Bank of America,
N.A., as Administrative Agent (as amended, modified and supplemented from time
to time, the "Credit Agreement");
WHEREAS, the Borrower's Subsidiary, Railworks X.X. Xxxxx, L.P.
("Xxxxx") has advised the Lenders that it intends to transfer those assets
described in Exhibit A attached hereto (the "Xxxxx Sale Assets") to an unrelated
third party via a sale that would (i) generate not less than $13,000,000 of Net
Cash Proceeds and pursuant to which a minimum aggregate principal amount of
$2,750,000 in fixed asset Indebtedness of the Borrower will be assumed by the
buyer at closing (the "Xxxxx Sale"), and (ii) be consummated according to terms
and conditions substantially similar to those set forth in that certain draft
Asset Purchase Agreement furnished to counsel for the Agent as of the date
hereof;
WHEREAS, the Credit Parties have also advised the Lenders that they
expect that they will not meet the financial covenants contained in Section 7.9
of the Credit Agreement for the period ending June 30, 2001;
WHEREAS, the Borrower has requested that the Lenders (a) consent to the
Xxxxx Sale, (b) waive any Default or Event of Default arising exclusively as a
result of the Credit Parties' failure to comply with the financial covenants
contained in Section 7.9 for the period ending June 30, 2001 (the "Anticipated
Events of Default"), and (c) make certain modifications to the Credit Agreement;
WHEREAS, certain of the requested modifications cannot be made without
the consent of (a) one hundred percent (100%) of the Revolving Lenders and (b)
Tranche B Term Lenders holding sixty-six and two-thirds percent (66-2/3%) of the
Tranche B Term Loan (collectively, the "Necessary Lenders");
WHEREAS, the Necessary 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 definition of "Applicable Percentage" contained in Section
1.1 is amended by deleting the pricing grid contained therein and replacing it
with the following pricing grid:
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Applicable Percentages Applicable Percentages
for Revolving Loans for Tranche B Term Loan
----------------------- ------------------------
Eurodollar
Loans
Consolidated and
Pricing Total Leverage Letter of Base Rate Commitment Eurodollar Base Rate
Level Ratio Credit Fee Loans Fee Loans Loans
------- --------------- ---------- --------- ---------- ---------- ---------
I > 5.5 4.50% 3.00% 0.750% 5.50% 4.00%
-
II > 5.0 but < 5.5 4.00% 2.50% 0.750% 5.00% 3.50%
-
III > 4.5 but < 5.0 3.75% 2.25% 0.625% 4.75% 3.25%
-
IV > 4.0 but < 4.5 3.50% 2.00% 0.625% 4.50% 3.00%
-
V > 3.5 but < 4.0 3.00% 1.50% 0.500% 4.00% 2.50%
-
VI > 3.0 but < 3.5 2.75% 1.25% 0.500% 4.00% 2.25%
-
VII > 2.5 but < 3.0 2.50% 1.00% 0.375% 4.00% 2.25%
-
VIII > 2.0 but < 2.5 2.25% 0.50% 0.300% 4.00% 2.25%
-
IX > 1.5 but < 2.0 2.00% 0.50% 0.300% 4.00% 2.25%
-
X < 1.5 1.75% 0.50% 0.250% 4.00% 2.25%
1.2 The term "Available Revolving Committed Amount" is deleted
from Section 1.1.
1.3 Clause (i) contained in the proviso to Section 2.1(a) is
amended to read as follows:
(i) with regard to the Revolving Lenders
collectively, the aggregate principal amount of Revolving
Obligations outstanding at any time shall not exceed ONE
HUNDRED ELEVEN MILLION DOLLARS ($111,000,000) (as such amount
may be reduced from time to time in accordance with the
provisions hereof, the "Aggregate Revolving Committed
Amount"),
1.4 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 to the Revolving Obligations
(with a corresponding permanent reduction in the Aggregate
Revolving Committed Amount in an amount equal to all amounts
so applied) until such time as the Aggregate Revolving
Committed Amount has been reduced to $96,057,690, and, at any
time thereafter, ratably among the Tranche B Term Loan (to the
principal amortization installments thereof in inverse order
of maturity) and the Revolving Obligations (with a
corresponding permanent reduction in the Aggregate Revolving
Committed Amount in an amount equal to all amounts so
applied).
1.5 The first sentence of Section 3.3(c)(ii)(B) is amended to read
as follows:
Mandatory prepayments made under this Section 3.3 in respect
of Debt Transactions and Equity Transactions shall be applied
to the Revolving Obligations (with a corresponding permanent
reduction in the Aggregate Revolving Committed Amount in each
case in an amount equal to all amounts so applied) until such
time as the Aggregate Revolving Committed Amount has been
reduced to $96,057,690, and, at any time thereafter, ratably
among the Tranche B Term Loan (to the principal amortization
installments thereof in inverse order of maturity) and the
Revolving Obligations (with a corresponding permanent
reduction in the Aggregate Revolving Committed Amount in an
amount equal to all amounts so applied).
1.6 The first sentence of Section 3.3(c)(ii)(C) is amended to read
as follows:
Mandatory prepayments made under this Section 3.3 in respect
of Consolidated Excess Cash Flow shall be applied to the
Revolving Obligations (with a corresponding
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permanent reduction in the Aggregate Revolving Committed
Amount in an amount equal to all amounts so applied) until
such time as the Aggregate Revolving Committed Amount has been
reduced to $96,057,690, and, at any time thereafter, fifty
percent (50%) to the Tranche B Term Loan (to the principal
amortization installments thereof in inverse order of
maturity) and fifty percent (50%) to the Revolving Obligations
(with a corresponding permanent reduction in the Aggregate
Revolving Committed Amount in an amount equal to all amounts
so applied).
1.7 Section 3.4(b) is amended to read as follows:
(b) Mandatory Reductions for Prepayments. The
Aggregate Revolving Committed Amount shall be permanently
reduced by the amount of any prepayment on the Revolving
Obligations made pursuant to Section 3.3(c)(ii).
1.8 Section 3.4(c) of the Credit Agreement is amended to read as
follows:
(c) Automatic Reductions. Unless the Aggregate
Revolving Committed Amount has been sooner permanently
reduced, in accordance with the provisions of the Credit
Agreement, to or below $96,057,690, the Aggregate Revolving
Committed Amount shall be automatically and permanently
reduced to $96,057,690 on October 1, 2001. The Aggregate
Revolving Committed Amount shall be further automatically and
permanently reduced on the dates set forth below by the amount
set forth opposite each such date:
Date Amount
---- ----------
June 30, 2002 $2,500,000
December 31, 2002 $2,500,000
June 30, 2003 $3,750,000
December 31, 2003 $3,750,000
June 30, 2004 $7,500,000
1.9 Section 3.15(c) is amended in its entirety to read as follows:
(c) Allocation of Payments After Event of
Default. Notwithstanding any other provisions of this Credit
Agreement to the contrary, after the occurrence and during the
continuance of an Event of Default, all amounts collected or
received by the Administrative Agent or any Lender on account
of the Obligations or any other amounts outstanding under any
of the Credit Documents shall be paid over or delivered as
follows:
FIRST, to the payment of all reasonable
out-of-pocket costs and expenses (including without
limitation reasonable attorneys' fees) of the Agents
in connection with enforcing the rights of the
Lenders under the Credit Documents;
SECOND, to payment of any Administrative
Agent's Fees then due and payable;
THIRD, to the payment of all reasonable
out-of-pocket costs and expenses (including without
limitation, reasonable attorneys' fees) of each of
the Lenders in connection with enforcing its rights
under the Credit Documents or otherwise with respect
to the Obligations owing to such Lender;
FOURTH, to the payment of all accrued
interest and Fees on or in respect of the
Obligations;
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FIFTH, to the payment of any outstanding
principal amounts of Revolving Obligations in excess
of $96,057,690;
SIXTH, to the payment of the outstanding
principal amount of the Obligations (including the
payment of all LOC Obligations then reimbursable by
the Borrower pursuant to Section 2.6(c), but
excluding any LOC Obligations attributable to issued
but undrawn Letters of Credit) and to the payment of
any principal amounts outstanding under Hedging
Agreements (to the extent permitted hereunder);
SEVENTH, to the cash collateralization of
all LOC Obligations attributable to issued but
undrawn Letters of Credit;
EIGHTH, to all other obligations which shall
have become due and payable under the Credit
Documents or otherwise and not repaid pursuant to
clauses "FIRST" through "SIXTH" above; and
NINTH, to the payment of the surplus, if
any, to whomever may be lawfully entitled to receive
such surplus.
In carrying out the foregoing, (i) amounts received shall be
applied in the numerical order provided until exhausted prior
to application to the next succeeding category; and (ii) each
of the Lenders shall receive an amount equal to its pro rata
share (based on the proportion that then outstanding
Obligations and obligations under Hedging Agreements (to the
extent permitted hereunder) held by such Lender bears to the
aggregate then outstanding Obligations and obligations under
Hedging Agreements (to the extent permitted hereunder)) of
amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH", "SIXTH" and "SEVENTH" above; and (iii) all
amounts available to be applied to pursuant to clause
"SEVENTH" above shall be held by the Administrative Agent in a
cash collateral account and applied (A) first, to reimburse
the Issuing Lender for any drawings under such Letters of
Credit and (B) then, following the expiration of all Letters
of Credit, to all other obligations of the types described in
clauses "SEVENTH" AND "EIGHTH" above in the manner provided in
this Section 3.15(c).
1.10 Section 5.2(c) is amended to read as follows:
(c) Officer's Certificate. If after giving
effect to such Extension Credit, the aggregate principal
amount of the Revolving Obligations will exceed the greater of
the "Borrowing Base" (as defined in the Senior Subordinated
Note Indenture) or $100,000,000 (as such amounts may be
reduced pursuant clause (ii) of the definition of "Permitted
Indebtedness" in the Senior Subordinated Note Indenture), the
Borrower shall have delivered to the Administrative Agent and
to the Trustee under the Senior Subordinated Note Indenture a
certificate of a Responsible Officer of the Borrower to the
effect that the acceptance by the Borrower of such Extension
of Credit does not violate the provisions of Section 4.11 of
the Senior Subordinated Note Indenture.
1.11 Clause (h) of Section 7.2 is amended to read as follows:
(h) Cash Flow Reports. As soon as available, and
in any event within three (3) Business Days following the end
of the previous week (commencing with the week beginning June
18, 2001) a report, in a form acceptable to the Administrative
Agent, that includes (i) a detailed cash flow projection of
the Borrower for the then upcoming thirteen weeks, on a
consolidated and consolidating basis (a "Forecast"), (ii) a
variance analysis reflecting a detailed comparison between the
actual cash flow computations of the Borrower
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through the end of the previous week on a consolidated and
consolidating basis and those projected for such period in the
most recent cash flow projection previously provided to the
Administrative Agent in accordance with this Section, and
(iii) a narrative discussion of any material variances between
the actual cash flow computations for any given week and those
contained for such week in the previous Forecast;
1.12 Clause (i) of Section 7.2 is renumbered as clause 7.2(m)
thereof and the following new clauses (j), (k), and (l) are added to Section
7.2:
(j) Daily Cash Report. Each Business Day, a
report in form reasonably acceptable to the Administrative
Agent summarizing the Borrower's cash position as of such day
including without limitation a list of presentments expected
to be made that day.
(k) Accounts Payable Agings. Concurrently with
the deliver of the financial statements referred to in Section
7.2(h) above, a summary of the accounts payable agings in a
form reasonably acceptable to the Administrative Agent.
(l) Surety Claims. Within five (5) Business Days
of receipt, written notice of any notification from any surety
of any of the Credit Parties concerning claims made against
such surety in connection with any significant project of such
Credit Party, and, as soon as available, and in any event
within five (5) Business Days after the receipt of such
notification, a copy of any such notification; and
1.13 The following new Section 8.15 is added:
8.15 Surety Claims. Permit claims against
sureties of any of the Credit Parties remaining uncured after
thirty (30) days to exceed (a) $750,000 in the aggregate
through June 30, 2001, and (b) $250,000 in the aggregate at
any time thereafter, unless such claims are being contested in
good faith with appropriate reserves taken in accordance with
GAAP.
2. Eurodollar Loans. Notwithstanding anything to contrary
contained in the Credit Agreement, each currently outstanding Eurodollar Loan
shall be converted to a Base Rate Loan at the end of the current interest
period. Until October 1, 2001, the Borrower shall not be permitted to request
additional Eurodollar Loans or convert Base Rate Loans to Eurodollar Loans.
3. Consent/Waiver.
(a) Consent. The Required Lenders hereby consent to the
Xxxxx Sale on the conditions that (i) the Net Cash Proceeds from the
Xxxxx Sale are (A) not less than $13,000,000 and (B) are delivered to
the Administrative Agent for application in accordance with the terms
and conditions of the Credit Agreement, as amended by this Agreement,
(ii) a minimum aggregate principal amount of $2,750,000 in fixed asset
Indebtedness of the Borrower is assumed by the buyer of the Xxxxx Sale
Assets upon closing of the Xxxxx Sale, and (iii) the sale is
consummated according to terms and conditions substantially similar to
those set forth in that certain draft Asset Purchase Agreement
furnished to counsel for the Agent as of the date hereof.
(b) Waiver. The Lenders hereby waive the Anticipated
Events of Default; provided, however, that nothing contained in this
Amendment shall relieve any Credit Party from complying with each and
every other term and condition of the Credit Documents (including the
financial covenants contained in Section 7.9 of the Credit Agreement as
they relate to any period after June 30, 2001) from and after the date
hereof.
4. Covenants. The Credit Parties hereby covenant and agree that:
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(a) Additional Financial Covenant. For the period ending
June 30, 2001, they shall cause Consolidated EBITDA (calculated in this
instance by excluding any EBITDA generated by the Xxxxx civil division
after May 31, 2001) for the fiscal quarter ending June 30, 2001 to be
not less than $15,000,000;
(b) Crisis Manager. The Borrower shall continue to engage
a crisis manager (the "Crisis Manager") to assist it in improving its
cash management and financial reporting and developing a comprehensive
business recovery plan in form reasonably acceptable to the
Administrative Agent (the "Business Plan") for presentation to the
Administrative Agent and the Lenders; and that the Borrower shall (i)
cause the Crisis Manager to meet periodically with the Administrative
Agent and the Lenders to report on the Crisis Manager's findings,
reports and recommendations, and (ii) refrain from terminating its
current engagement of Glass & Associates, Inc. as Crisis Manager unless
the Borrower immediately replaces Glass & Associates, Inc. with another
Crisis Manager with similar experience and reputation, and upon similar
terms and scope;
(c) Access to Officers and Directors. The Borrower shall
cause its officers and directors to be available to meet with the
Administrative Agent and to issue reports to the Administrative Agent
addressing the Credit Parties' cash flow situation and any other
matters related to the Credit Parties financial situation, at such
times as reasonably requested by the Administrative Agent; provided,
however, that any negotiations concerning terms and conditions of the
Credit Agreement shall be conducted with the officers of the Borrower;
(d) Consultant. They shall cooperate fully with the
consultant retained by the Administrative Agent and the Lenders,
Xxxxxxxx & Xxxxx, LLC (the "Lenders Consultant"), which cooperation
shall include, without limitation allowing the Consultant reasonable
access to observe the Credit Parties' respective operations and
financial records and projections, and the Borrower shall reimburse the
Administrative Agent and the Lenders for all reasonable fees and
expenses incurred by the Administrative Agent and the Lenders in
connection with their retention of the Consultant;
(e) Xxxxxx Xxxxxxxx Report. The Borrower shall deliver to
the Administrative Agent (i) on or before June 30, 2001, a preliminary
overview of contracts and project controls from Borrower's outside
accountant, Xxxxxx Xxxxxxxx ("Xxxxxxxx"), and (ii) on or before July
31, 2001, a final report prepared by Xxxxxxxx concerning the
aforementioned contracts and project controls in form consistent with
Xxxxxxxx'x standard operating procedures and reasonably acceptable to
the Administrative Agent; and
(f) Business Plan. That the Borrower shall deliver a
complete copy of the Business Plan to the Administrative Agent on or
before August 17, 2001.
5. Warrants. On or before July 31, 2001, the Borrower shall
deliver to an escrow agent designated by the Administrative Agent warrants for
registered shares of common stock (the "Warrants") in an amount which will be
equal to two percent (2.0%) of the fully diluted and outstanding equity of the
Borrower as of the date hereof (after giving effect to the issuance of the
Warrants). The Warrants shall be beneficially held by the Lenders and allocated
among the Lenders on a pro rata basis based on each Lender's Commitments under
the Credit Agreement as of the date hereof. One-fourth of the Warrants shall be
exercisable on or after each of September 30, 2001, October 31, 2001, November
30, 2001 and December 31, 2001. The Warrants shall have a strike price of $0.01
per share (payable in cash or in kind), be freely assignable, incorporate
standard weighted average anti-dilution protection for stock splits, dividends
and distributions, and have one long-form demand, unlimited short-form demand
and unlimited piggyback registration rights (subject to customary thresholds and
pro rata cutbacks).
6. 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).
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7. Special Compliance Certificate. On October 1, 2001 the
Borrower shall deliver to the Agent a certificate in the form attached hereto as
Schedule I, duly executed by a Responsible Officer (the "October 1, 2001
Compliance Certificate"). Failure to deliver the October 1, 2001 Compliance
Certificate on October 1, 2001 shall constitute an immediate Event of Default
under the Credit Agreement.
8. Legal Opinion. On or before June 25, 2001, the Borrower shall
deliver to the Administrative Agent an opinion of counsel to the Credit Parties
relating to this Amendment and the transactions contemplated hereby, in form and
substance reasonably acceptable to the Administrative Agent.
9. 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 and the Lenders, and the
respective officers, employees, representatives, agents, counsel, trustees and
directors of each of the foregoing, 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.
10. Amendment Fee. In consideration of the willingness of the
Necessary Lenders to enter into this Amendment, the Borrower agrees to pay the
Administrative Agent, for the ratable benefit of the Lenders which execute this
Amendment on the date hereof, an amendment fee (the "Amendment Fee") equal to
one-quarter percent (0.25%) of the aggregate Commitments (after giving effect to
this Amendment). One-fourth of the Amendment Fee shall be due and payable on the
date hereof, an additional one-fourth of the Amendment Fee shall be due and
payable on or before August 1, 2001, an additional one-fourth of the Amendment
Fee shall be due and payable on or before September 1, 2001, and the final
one-fourth of the Amendment Fee shall be due and payable on or before September
30, 2001.
11. Costs and Expenses. The Borrower agrees to pay all reasonable
costs and expenses of the Administrative Agent and the Lenders in connection
with the preparation, execution and delivery of this Amendment, including,
without limitation, the reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC,
counsel to the Administrative Agent.
12. Reaffirmation of Guaranty. Each Guarantor (a) acknowledges and
consents to all of the terms and conditions of this Amendment, (b) affirms all
of its obligations under the Credit Documents and (c) 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.
13. 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.
14. Conditions Precedent. The effectiveness of this Amendment
shall be subject to 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
Necessary Lenders; and
(b) receipt by the Administrative Agent, for the ratable
benefit of the Lenders which execute this Amendment on the date hereof,
of one-fourth of the Amendment Fee.
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15. 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. Delivery of an executed
counterpart of this Amendment by telecopy shall be effective as an original and
shall constitute a representation that an original shall be delivered to the
Administrative Agent.
16. 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: BREAKING TECHNOLOGY & EQUIPMENT, INC., a New York corporation
CPI CONCRETE PRODUCTS, INCORPORATED, a Tennessee corporation
CRANEQUIP INC., a Delaware corporation
GANTREX CORPORATION, a Pennsylvania corporation
HSQ TECHNOLOGY CORPORATION, a California corporation
X.X. XXXXXXXX & COMPANY, INC., a New York corporation
M-TRACK ENTERPRISES, INC., a New York corporation
MIDWEST CONSTRUCTION SERVICES, INC., an Indiana corporation
NEOSHO CENTRAL AMERICA, INC., a Kansas corporation
NEOSHO CONSTRUCTION COMPANY, INCORPORATED, a Kansas
corporation
NEOSHO INCORPORATED, INC., a Kansas corporation
RAILWORKS RAIL PRODUCTS & SERVICES, INC., a Kansas corporation
RAILWORKS TRANSIT, INC., a New York corporation
RAILWORKS WOOD PRODUCTS, INC., a Delaware corporation
RWKS CONSTRUCTION, INC., a Maryland corporation
U.S. RAILWAY SUPPLY, INC., an Indiana corporation
WOOD WASTE ENERGY, INC., a Virginia 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: RAILWORKS WOOD PRODUCTS, INC.,
a Delaware corporation, its managing member
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By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
RAILWORKS TRACK SERVICES, INC., an Indiana corporation
By:
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
RAILWORKS TRACK SYSTEMS, INC., a Nevada corporation
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
RAILWORKS X.X. XXXXX, L.P., a Texas limited partnership
By: RAILWORKS TRACK SYSTEMS, INC., a Nevada corporation
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
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:
FLEET NATIONAL 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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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:
FOOTHILL PARTNERS IV, LP
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:
AVALON CAPITAL LTD 2.
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 CLO II, LIMITED
By:
-----------------------------------------
Name:
Title:
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XXX XXXXXX SENIOR INCOME TRUST
By:
-----------------------------------------
Name:
Title:
XXX XXXXXX SENIOR FLOATING RATE
By:
-----------------------------------------
Name:
Title:
REDWOOD MASTER FUND, LTD.
By:
-----------------------------------------
Name:
Title:
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Schedule I
Form of October 1, 2001 Compliance Certificate
This Certificate is delivered in accordance with the provisions of
Section 7 of that Third Amendment dated as of June __, 2001 among RailWorks
Corporation, a Delaware corporation (the "Borrower"), the Subsidiaries of the
Borrower identified therein, the lenders identified therein, and Bank of
America, N.A., as Administrative Agent (the "Third Amendment"). The Third
Amendment is to that certain Amended and Restated Credit Agreement dated as of
April 28, 2000 (as amended, modified and supplemented, the "Credit Agreement")
among the Borrower, the Subsidiaries of the Borrower identified therein, the
lenders identified therein, First Union National Bank, as Documentation Agent,
and Bank of America, N.A., as Administrative Agent. Terms used but not otherwise
defined herein shall have the same meanings provided in the Credit Agreement.
The undersigned, being a Responsible Officer of the Borrower, hereby
certifies, in my official capacity and not in my individual capacity, that to
the best of my knowledge and belief as of the date hereof no Default or Event of
Default has occurred and is continuing.
This the 1st day of October, 2001.
RAILWORKS CORPORATION
By:
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Name:
Title:
