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Exhibit 10.48
SECOND AMENDMENT
THIS SECOND AMENDMENT (this "Amendment"), dated as of February __,
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.
WITNESSETH
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
maturity) and the Revolving Obligations
(with a corresponding permanent reduction
in the Aggregate Revolving Committed Amount
and
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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 Clause (b) of Section 3.4 of the Credit Agreement is
renumbered as clause (c) thereof 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
------------------ -----
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 Consolidated Net Income
for the fiscal quarter (but not less than
zero), such increases to be cumulative,
plus (iii) one hundred percent (100%) of
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any increases in Consolidated Net Worth
resulting from Equity Transactions
occurring after the date of the First
Amendment.
2. 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.
3. 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).
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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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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:
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:
[SIGNATURE PAGES CONTINUE]
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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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