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EXHIBIT 10.41
AMENDMENT NO. 4
THIS AMENDMENT NO. 4 (this "Amendment") dated as of March 30, 2000, 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, 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.
WITNESSETH
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 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 has requested certain modifications to
the Credit Agreement;
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. The Credit Agreement is amended in the following respects:
1.1 The definition of "Consolidated EBITDA" in the Credit
Agreement is hereby amended to read as follows:
"Consolidated EBITDA" means, for any period for the
Consolidated Group, the sum of Consolidated Net Income plus
Consolidated Interest Expense plus all provisions for any
federal, state or other domestic and foreign income taxes plus
depreciation and amortization, in each case on a consolidated
basis determined in accordance with GAAP applied on a
consistent basis, but excluding for purposes hereof
extraordinary gains and losses and related tax effects
thereon.
1.2 The definition of "Consolidated Fixed Charges" in the Credit
Agreement is hereby amended to read as follows:
"Consolidated Fixed Charges" means, for any period for the
Consolidated Group, the sum of the cash portion of
Consolidated Interest Expenses plus Restricted Payments plus
scheduled current maturities of Funded Debt (other that the
Obligations) plus fifteen percent (15%) of the Obligations
outstanding on the date of determination, in each case on a
consolidated basis determine in accordance with GAAP applied
on a consolidated basis. Except as otherwise expressly
provided, the applicable period shall be for the four
consecutive fiscal quarters ending as of the date of
determination.
1.3 Clauses (c) and (d) in Section 8.4 of the Credit Agreement are
renumbered as clauses (d) and (e) thereof, respectively, and a new
clause (c) is added thereto to read as follows:
(c) the maximum amount of earn-out payments paid in any fiscal
year in connection with Acquisitions shall not exceed
$15,000,000 in the aggregate;
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2. The Required Lenders hereby consent to the incurrence by the
Domestic Borrower, and the guaranty thereof by the Domestic Subsidiaries, of up
to $100,000,000 of Funded Debt under a term loan credit facility, provided that
(a) the terms and conditions of the term loan credit facility are substantially
similar to the terms and conditions set forth in the Summary of Terms attached
hereto as Schedule A and (b) the proceeds of the term loan credit facility shall
be used to repay the outstanding loans under the Credit Agreement and the
existing $30 million term loan credit facility. In addition, the Required
Lenders hereby consent and agree that the term loan credit facility may be
secured by Liens on the Property of the Domestic Borrower and the Domestic
Subsidiaries provided that (a) such Liens secure the obligations under the term
loan credit facility on a pari passu basis with the obligations under the Credit
Documents, (b) such Liens are on the same Property as to which the Lenders also
have a Lien and (c) such Liens are subject to an intercreditor agreement which
shall be in form and substance satisfactory to the Required Lenders.
3. The Credit Parties hereby affirm (i) the representations and
warranties set out in Section 6 of the Credit Agreement are true and correct in
all material respects as of the date hereof (except those which expressly relate
to an earlier period) and (ii) no Default or Event of Default presently exists.
4. 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.
5. 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.
6. 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. 4 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: Executive Vice President and
Chief Financial Officer
CANADIAN
BORROWERS: GANTREX RW COMPANY,
a Nova Scotia unlimited liability company
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
RAILWORKS CANADA COMPANY,
a Nova Scotia unlimited liability company
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[Signature Pages Continue]
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DOMESTIC
GUARANTORS: ALPHA-KEYSTONE ENGINEERING, INC.,
a Pennsylvania corporation
ANNEX RAILROAD BUILDERS, INC.,
an Indiana 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
RAILWORKS TRANSIT, INC.,
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
MIDWEST CONSTRUCTION SERVICES, INC.,
an Indiana corporation
MIDWEST RAILROAD CONSTRUCTION & MAINTENANCE
CORPORATION OF WYOMING, a Wyoming corporation
MINNESOTA RAILROAD SERVICE, INC.,
a Tennessee corporation
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Guarantors
[Signature Pages Continue]
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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
NEOSHO RAIL SERVICES, INC.,
a Kansas corporation
RAILCORP, INC.,
an Ohio corporation
RAILROAD SERVICE, INC.,
a Nevada corporation
XXXXXXX ELECTRIC, INC.,
a Delaware corporation
SOUTHERN INDIANA WOOD PRESERVING CO., INC.,
an Indiana corporation
XXXXX CORPORATION,
a Maryland 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 Guarantors
[Signature Pages Continue]
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X.X. XXXXXXXX & COMPANY, INC.,
a New York corporation
By:
-------------------------------------------
Name: C. Xxxxxxx Xxxxx
Title: Chief Executive Officer and President
F&V METRO RW, INC.,
a Delaware corporation
RAILWORKS CANADA, INC.
a Delaware corporation
By:
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Secretary of each
of the foregoing Guarantors
By:
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Guarantors
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
[Signature Pages Continue]
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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 CONTRACTORS 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:
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Guarantors
[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:
FLEET BANK, N.A.
By:
--------------------------------
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
BANK ONE, MICHIGAN
By:
--------------------------------
Name:
Title:
M&T BANK
By:
--------------------------------
Name:
Title:
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BANK OF AMERICA CANADA,
individually in its capacity as a Lender
and in its capacity as Canadian Administrative Agent
By:
---------------------------------
Name:
Title:
CONGRESS FINANCIAL CORPORATION [CANADA]
By:
---------------------------------
Name:
Title:
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EXHIBIT A
Summary of Term of $100,000,000 Term Loan Credit Facility
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