SEC Info - Railamerica Inc/DE - ‘10-K’ for 12/31/02

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Railamerica Inc/DE – ‘10-K’ for 12/31/02 – EX-10.86

On: Thursday, 3/27/03, at 9:18am ET · For: 12/31/02 · Accession #: 1169232-3-2313 · File #: 0-20618

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 3/27/03  Railamerica Inc/DE                10-K       12/31/02    8:398K                                   Edgar Ease Svc Bureau/FA

Annual Report — Form 10-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-K        Annual Report                                         78    467K 
 2: EX-10.86    Amendment No. 1 to Credit Agreement                   65     51K 
 3: EX-10.87    Deferred Compensation Plan                            27     88K 
 4: EX-10.88    Adoption Agreement                                    27     59K 
 5: EX-21       Subsidiaries of Registrant                             3     22K 
 6: EX-23.1     Consent of Pricewaterhousecoopers LLP                  1      6K 
 7: EX-99.1     Peo Certification                                      1      6K 
 8: EX-99.2     Pfo Certification                                      1      6K

EX-10.86 — Amendment No. 1 to Credit Agreement

EX-10.86 1st Page of 65 TOC ↑Top Previous Next ↓Bottom Just 1st
 
                                                                   Exhibit 10.86

                                                                  EXECUTION COPY

 AMENDMENT NO. 1 TO CREDIT AGREEMENT

 AMENDMENT NO.1 dated as of February 28, 2003 to the CREDIT AGREEMENT,
dated as of May 23, 2002, among RAILAMERICA, INC., PALM BEACH RAIL HOLDING,     
INC., RAILAMERICA TRANSPORTATION CORP., RAILAMERICA CANADA CORP., RAILINK CANADA
LTD., RAILAMERICA AUSTRALIA FINANCE PTY., LTD., FREIGHT VICTORIA LIMITED,       
RAILAMERICA AUSTRALIA PTY., LTD. (collectively, the "Borrowers"), financial     
institutions and other Persons from time to time parties thereto, UBS WARBURG   
LLC, and MORGAN STANLEY SENIOR FUNDING, INC., as Joint Lead Arrangers and       
Bookrunners, MORGAN STANLEY SENIOR FUNDING, INC., as the Syndication Agent for  
the Lenders, UBS AG, STAMFORD BRANCH, as Administrative Agent for the Lenders,  
THE BANK OF NOVA SCOTIA and CREDIT LYONNAIS, NEW YORK BRANCH, as Documentation  
Agents for the Lenders and THE BANK OF NOVA SCOTIA, as Collateral Agent for the 
Lenders.                                                                        

W I T N E S S E T H:

   WHEREAS, the parties hereto are party to the Credit Agreement described
above (as in effect immediately prior to the effectiveness hereof, the "Credit  
Agreement");                                                                    

    WHEREAS, the Company has advised the Lenders that it has undertaken, and
intends to undertake, certain tax-related restructurings and related            
transactions with respect to certain of its Australian and Canadian             
Subsidiaries, all as further described on Exhibit A hereto (the "Restructuring  
Transactions"); and                                                             

    WHEREAS, the parties hereto wish to make certain technical amendments to
the Credit Agreement to permit the Restructuring Transactions and to waive any  
technical Defaults which may have arisen prior to the date hereof with respect  
thereto;                                                                        

NOW, THEREFORE, the parties hereto agree as follows.                

Section 1. Definitions. Unless otherwise specifically defined in the
recitals above, each term used herein which is defined in the Credit Agreement  
shall have the meaning assigned to such term in the Credit Agreement. Each      
reference to "hereof", "hereunder", "herein" and "hereby" and each other similar
reference and each reference to "this Agreement" and each other similar         
reference                                                                       

1 

EX-10.86 2nd Page of 65 TOC 1st Previous Next ↓Bottom Just 2nd
contained in the Credit Agreement shall, on and after the effectiveness of this 
Amendment, refer to the Credit Agreement as amended hereby.                     

  Section 2. Subordinated Debt. The definition of "Subordinated Debt" in
Section 1.1 of the Credit Agreement is amended by inserting after "Senior       
Subordinated Notes" the words "but excluding any Indebtedness owed to Holdings, 
Intermediate Holdings, the Company or any Restricted Subsidiary".               

     Section 3. Capital Stock of RAAPL. Section 7.2.11 of the Credit Agreement
is amended by inserting at the beginning of clause (d) thereof the letter "(i)" 
and by inserting, immediately after "Domestic Restricted Subsidiaries" in such  
clause (d) the following: ", or (ii) the one-time transfer by the Australian    
Term Borrower of one share of the Capital Stock of RAAPL to an individual who is
a Related Party".                                                               

    Section 4. Amendments to Organic Documents. Section 7.2.12 of the Credit
Agreement is amended by replacing paragraph (b) thereof to read in its entirety 
as follows:                                                                     

(b) the Organic Documents, except to the extent that such amendment,
     supplement, waiver or other modification or forebearance pursuant to such
     documents could not reasonably be expected to materially adversely affect
    the rights and remedies of any Secured Party under any Loan Documents or
the ability of any Obligor to perform its Obligations under any Loan
      Document, it being understood that the amendments to the Organic Documents
arising out of certain restructuring and tax-related transactions   
  disclosed to the Lenders on or prior to February 28, 2003 shall not be
considered to have had such a materially adverse affect.            

 Section 5. Transactions With Affiliates. Section 7.2.13 of the Credit
Agreement is amended by adding immediately after "Affiliates" the words "(other 
than the transaction permitted by Section 7.2.11(d)(ii))".                      

  Section 6. Waiver of Defaults. The Lenders hereby waive any Default or
Event of Default solely to the extent that such Default or Event of Default is a
result of any noncompliance by the Company with Section 7.2.12 arising prior to 
the date of effectiveness hereof as a result of any of the Restructuring        
Transactions. Other than as specifically provided herein, this Amendment shall  
not operate as a waiver or amendment of any right, power or privilege of the    
Lenders under the Credit Agreement or of any other term or condition of the     
Credit Agreement, nor shall the entering into of this Amendment preclude the    
Lenders from refusing to enter into any further waivers or amendments with      
respect to the Credit Agreement.                                                

 Section 7. Representations and Warranties. The Company represents and
warrants that (i) the representations and warranties set forth in Article VI of 
the Credit Agreement will be true and correct as of the effective date of this  

2 

EX-10.86 3rd Page of 65 TOC 1st Previous Next ↓Bottom Just 3rd
Amendment and (ii) after giving effect to Section 5 hereof, no Default will have
occurred and be continuing on such date.                                        

     Section 8. Fees and expenses. Each of Holdings, Intermediate Holdings and
the Borrower agrees that it will comply with its obligations under Section 11.3 
of the Credit Agreement with respect to costs and expenses arising in connection
with this Amendment.                                                            

Section 9. Governing Law. This Amendment shall be governed by and   
construed in accordance with the laws of the State of New York.                 

     Section 10. Counterparts; Effectiveness. (a) This Amendment may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.   

(b) This Amendment shall become effective upon receipt by the       
Administrative Agent of duly executed counterparts hereof signed by Holdings,   
Intermediate Holdings, the Borrowers and the Required Lenders (or, in the case  
of any such party as to which an executed counterpart or consent shall not have 
been received, the Administrative Agent shall have received telegraphic, telex  
or other written confirmation from such party of execution of a counterpart     
hereof or consent hereto by such party).                                        

3 

EX-10.86 4th Page of 65 TOC 1st Previous Next ↓Bottom Just 4th
   IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day   
and year first above written.                                                   

                         RAILAMERICA, INC.

                     By: /s/ Larry W. Bush
                                            ------------------------------------
                        Name: Larry Bush
                                         Title: Vice-President & Treasurer

4 

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                                     PALM BEACH RAIL HOLDING, INC.

                     By: /s/ Larry W. Bush
                                            ------------------------------------
                        Name: Larry Bush
                             Title: Vice-President

5 

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                                        RAILAMERICA TRANSPORTATION CORP.

                     By: /s/ Larry W. Bush
                                            ------------------------------------
                        Name: Larry Bush
                             Title: Vice-President

6 

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                                RAILAMERICA CANADA CORP.

                     By: /s/ Larry W. Bush
                                            ------------------------------------
                        Name: Larry Bush
                             Title: Vice-President

7 

EX-10.86 8th Page of 65 TOC 1st Previous Next ↓Bottom Just 8th
                           RAILINK CANADA LTD.

                     By: /s/ Larry W. Bush
                                            ------------------------------------
                        Name: Larry Bush
                             Title: Vice-President

8 

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                                          RAILAMERICA AUSTRALIA FINANCE PTY.
            LTD.

                      By: /s/ Gary O. Marino
                                            ------------------------------------
                            Name: Gary O. Marino
                                      Title: Chief Executive Officer

9 

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                                FREIGHT VICTORIA LIMITED

                      By: /s/ Gary O. Marino
                                            ------------------------------------
                            Name: Gary O. Marino
                                      Title: Chief Executive Officer

10

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                                       RAILAMERICA AUSTRALIA PTY. LTD.

                      By: /s/ Gary O. Marino
                                            ------------------------------------
                            Name: Gary O. Marino
                                      Title: Chief Executive Officer

11

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                               UBS AG, STAMFORD BRANCH

                     By: /s/ Robert Reuter
                                            ------------------------------------
                           Name: Robert Reuter
                                 Title: Executive Director

                         By: /s/ Lynne B. Alfarone
                                            ------------------------------------
                               Name: Lynne B. Alfarone
                                          Title: Associate Director, Banking
                             Products Services, US

12

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                               HANOVER SQUARE CLO LTD.

                                     By: Blackstone Debt Advisors L.P., as
                          Collateral Manager

                    By: /s/ Dean Criares
                                            ------------------------------------
                          Name: Dean Criares
                                Title: Managing Director

13

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                             CITIGROUP INVESTMENTS
                                CORPORATE LOAN FUND INC.

                              By: Travelers Asset Management
                                 International Company LLC

                        By: /s/ Denise T. Duffee
                                            ------------------------------------
                              Name: Denise T. Duffee
                                 Title: Investment Officer

14

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                                  COLUMBUS LOAN FUNDING LTD.

                              By: Travelers Asset Management
                                 International Company LLC

                        By: /s/ Denise T. Duffee
                                            ------------------------------------
                              Name: Denise T. Duffee
                                 Title: Investment Officer

15

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                                     PROMETHEUS INVESTMENT FUNDING
                  NO. 1 LTD.

                           By: HVB Credit Advisors LLC

               By: /s/ Irv Roa
                                            ------------------------------------
                     Name: Irv Roa
                       Title: Director

                           By: /s/ Elizabeth Tallmadge
                                            ------------------------------------
                                 Name: Elizabeth Tallmadge
                                Title: Managing Director
                                              Chief Investment Officer

16

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                                     PROMETHEUS INVESTMENT FUNDING
                  NO. 2 LTD.

                           By: HVB Credit Advisors LLC

               By: /s/ Irv Roa
                                            ------------------------------------
                     Name: Irv Roa
                       Title: Director

                           By: /s/ Elizabeth Tallmadge
                                            ------------------------------------
                                 Name: Elizabeth Tallmadge
                                Title: Managing Director
                                              Chief Investment Officer

17

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                                  DENALI CAPITAL CLO I, LTD.

                      By: Denali Capital LLC
                            As portfolio manager

                       By: /s/ John P. Thacker
                                            ------------------------------------
                            Name: John P Thacker
                                   Title: Chief Credit Officer

18

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                                   DENALI CAPITAL CLO II, LTD.

                      By: Denali Capital LLC
                            As portfolio manager

                       By: /s/ John P. Thacker
                                            ------------------------------------
                             Name: John P. Thacker
                                   Title: Chief Credit Officer

19

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                                    DENALI CAPITAL CLO III, LTD.

                      By: Denali Capital LLC
                            As portfolio manager

                       By: /s/ John P. Thacker
                                            ------------------------------------
                             Name: John P. Thacker
                                   Title: Chief Credit Officer

20

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                            AMMC CDO II, LIMITED

                                    By: American Money Management Corp.,
                             as Collateral Manager

                      By: /s/ David P. Meyer
                                            ------------------------------------
                            Name: David P. Meyer
                             Title: Vice President

21

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                               WELLS FARGO BANK TEXAS,
                            NATIONAL ASSOCIATION

                        By: /s/ Anthony C. Frels
                                            ------------------------------------
                              Name: Anthony C. Frels
                             Title: Vice President

22

EX-10.86 23rd Page of 65 TOC 1st Previous Next ↓Bottom Just 23rd
                                         NATIONWIDE LIFE INSURANCE COMPANY

                        By: /s/ Wayne T. Frisbee
                                            ------------------------------------
                              Name: Wayne T. Frisbee
                             Title: Vice President

23

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                                           NATIONWIDE MUTUAL INSURANCE COMPANY

                        By: /s/ Wayne T. Frisbee
                                            ------------------------------------
                              Name: Wayne T. Frisbee
                             Title: Vice President

24

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                                         TORONTO DOMINION (NEW YORK), INC.

                       By: /s/ Stacey L. Malek
                                            ------------------------------------
                            Name: Stacey L Malek
                             Title: Vice President

25

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                               THE BANK OF NOVA SCOTIA

                        By: /s/ Patrick J. Hawes
                                            ------------------------------------
                              Name: Patrick J. Hawes
                          Title: Comptroller

26

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                                 LCM I LIMITED PARTNERSHIP

                                   By: Lyon Capital Management LLC, as
                        Attorney-in-Fact

                        By: /s/ Farboud Tavangar
                                            ------------------------------------
                              Name: Farboud Tavangar
                                      Title: Lyon Capital Management
                                     LLC, Senior Portfolio Manager

27

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                       RZB FINANCE LLC

                    By: /s/ Astrid Wilke
                                            ------------------------------------
                          Name: Astrid Wilke
                             Title: Vice President

                       By: /s/ John A. Valiska
                                            ------------------------------------
                             Name: John A. Valiska
                                   Title: Group Vice President

28

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                                    FRANKLIN FLOATING RATE TRUST

                                           FRANKLIN FLOATING RATE DAILY ACCESS
            FUND

                         By: /s/ Richard D'Addario
                                            ------------------------------------
                               Name: Richard D'Addario
                             Title: Vice President

29

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                                FRANKLIN CLO II, LIMITED

                                 FRANKLIN CLO III, LIMITED

                         By: /s/ Richard D'Addario
                                            ------------------------------------
                               Name: Richard D'Addario
                                    Title: Senior Vice President

30

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                                       THE GOVERNOR AND COMPANY OF THE
                       BANK OF IRELAND

                                By: /s/ Tom Hayes, Mary Connolly
                                            ------------------------------------
                                      Name: Tom Hayes, Mary Connolly
                                   Title: Authorized Signatory

31

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                                 SEQUILS - GLACE BAY, LTD.

                                By: The Royal Bank of Canada, as
                          Collateral Manager

                      By: /s/ Melissa Marano
                                            ------------------------------------
                            Name: Melissa Marano
                      Title: Partner

32

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                         KATONAH III, LTD.

                         By: /s/ Ralph Della Rocca
                                            ------------------------------------
                               Name: Ralph Della Rocca
                                 Title: Authorized Officer
                                              Katonah Capital, L.L.C.,
                                as Manager

33

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                             JUPITER FUNDING TRUST

                          By: /s/ Kelly W. Warnement
                                            ------------------------------------
                                Name: Kelly W. Warnement
                               Title: Authorized Agent

34

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                                 STANWICH LOAN FUNDING LLC

                          By: /s/ Kelly W. Warnement
                                            ------------------------------------
                                Name: Kelly W. Warnement
                             Title: Vice President

35

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                                 WINGED FOOT FUNDING TRUST

                          By: /s/ Kelly W. Warnement
                                            ------------------------------------
                                Name: Kelly W. Warnement
                               Title: Authorized Agent

36

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                             LONGHORN CDO II, LTD.

                                      By: Merrill Lynch Investment Managers,
                                   L.P., as Investment Advisor

                       By: /s/ Matthew Wallack
                                            ------------------------------------
                             Name: Matthew Wallack
                                   Title: Authorized Signatory

37

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                                HARBOUR TOWN FUNDING LLC

                     By: /s/ Ann E. Morris
                                            ------------------------------------
                           Name: Ann E. Morris
                                   Title: Asst. Vice President

38

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                               RACE POINT CLO, LIMITED

                             By: Sankaty Advisors, LLC, as
                          Collateral Manager

                        By: /s/ Timothy M. Barns
                                            ------------------------------------
                              Name: Timothy M. Barns
                                    Title: Senior Vice President

39

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                                   GREAT POINT CLO 1999-1 LTD.

                             By: Sankaty Advisors, LLC, as
                          Collateral Manager

                        By: /s/ Timothy M. Barns
                                            ------------------------------------
                           Name: Timothy Barns
                                    Title: Senior Vice President

40

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                                     CASTLE HILL II - INGOTS, LTD.

                             By: Sankaty Advisors, LLC, as
                          Collateral Manager

                        By: /s/ Timothy M. Barns
                                            ------------------------------------
                           Name: Timothy Barns
                                    Title: Senior Vice President

41

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                                    CASTLE HILL I - INGOTS, LTD.

                             By: Sankaty Advisors, LLC, as
                          Collateral Manager

                        By: /s/ Timothy M. Barns
                                            ------------------------------------
                              Name: Timothy M. Barns
                                    Title: Senior Vice President

42

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                                      BRANT POINT II CBO 2000-1 LTD.

                             By: Sankaty Advisors, LLC, as
                          Collateral Manager

                        By: /s/ Timothy M. Barns
                                            ------------------------------------
                              Name: Timothy M. Barns
                                    Title: Senior Vice President

43

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                                        SANKATY HIGH YIELD PARTNERS III,
            L.P.

                        By: /s/ Timothy M. Barns
                                            ------------------------------------
                              Name: Timothy M. Barns
                                    Title: Senior Vice President

44

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                                           MORGAN STANLEY SENIOR FUNDING, INC.

                      By: /s/ Eric H. Coombs
                                            ------------------------------------
                            Name: Eric H, Coombs
                             Title: Vice President

45

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                               AIMCO CLO SERIES 2001-A

                        By: /s/ Jerry D. Zinkula
                                            ------------------------------------
                              Name: Jerry D. Zinkula
                                   Title: Authorized Signatory

                     By: /s/ Chris Goergen
                                            ------------------------------------
                           Name: Chris Goergen
                                   Title: Authorized Signatory

46

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                                       ALLSTATE LIFE INSURANCE COMPANY

                        By: /s/ Jerry D. Zinkula
                                            ------------------------------------
                              Name: Jerry D. Zinkula
                                   Title: Authorized Signatory

                     By: /s/ Chris Goergen
                                            ------------------------------------
                           Name: Chris Goergen
                                   Title: Authorized Signatory

47

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                               AIMCO CDO SERIES 2000-A

                        By: /s/ Jerry D. Zinkula
                                            ------------------------------------
                              Name: Jerry D. Zinkula
                                   Title: Authorized Signatory

                     By: /s/ Chris Goergen
                                            ------------------------------------
                           Name: Chris Goergen
                                   Title: Authorized Signatory

48

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                               NATIONAL BANK OF CANADA

                    By: /s/ Robert Ziger
                                            ------------------------------------
                          Name: Robert Ziger
                              Title: Account Manager

49

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                                       CREDIT LYONNAIS NEW YORK BRANCH

                  By: /s/ Attila Koc
                                            ------------------------------------
                        Name: Attila Koc
                                    Title: Senior Vice President

50

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                                         SUNAMERICA LIFE INSURANCE COMPANY

                      By: /s/ John G. Lapham
                                            ------------------------------------
                            Name: John G. Lapham
                               Title: Authorized Agent

51

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                                          CANADIAN IMPERIAL BANK OF COMMERCE

                          By: /s/ William M. Swenson
                                            ------------------------------------
                                Name: William M. Swenson
                                   Title: Authorized Signatory

52

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                                GALAXY CLO, 2003-1, LTD.

                       By: CIBC Inc., as Agent

                          By: /s/ William M. Swenson
                                            ------------------------------------
                                Name: William M. Swenson
                                   Title: Authorized Signatory

53

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                                  NATEXIS BANQUES POPULAIRES

                        By: /s/ William J. Burke
                                            ------------------------------------
                              Name: William J. Burke
                             Title: Vice President

                         By: /s/ Michael J. Storms
                                            ------------------------------------
                               Name: Michael J. Storms
                        Title: Associate

54

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                      KZH SOLEIL LLC

                 By: /s/ Susan Lee
                                            ------------------------------------
                       Name: Susan Lee
                               Title: Authorized Agent

55

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                        KZH SOLEIL-2 LLC

                 By: /s/ Susan Lee
                                            ------------------------------------
                       Name: Susan Lee
                               Title: Authorized Agent

56

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                               NOMURA BOND & LOAN FUND

                                     By: UFJ Trust Company of New York, as
               Trustee

                             By: Nomura Corporate Research
                                     and Asset Management Inc., as
                        Attorney-in-Fact

                         By: /s/ Elizabeth MacLean
                                            ------------------------------------
                               Name: Elizabeth MacLean
                             Title: Vice President

57

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                                 LONG LANE MASTER TRUST II

                                 By: Fleet National Bank, as Trust
                                      Administrator, with respect to
                      Series Eclipse

                    By: /s/ Renee Nadler
                                            ------------------------------------
                          Name: Renee Nadler
                                Title: Managing Director

58

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                             ALLIED IRISH BANK PLC

                                      By: /s/ Mags Brennen, Anthony O'Reilly
                                            ------------------------------------
                           Name: Mags Brennen,
                                    Anthony O'Reilly
                                   Title: Vice President, Vice
                               President

59

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                               AIB DEBT MANAGEMENT PLC

                                      By: /s/ Mags Brennen, Anthony O'Reilly
                                            ------------------------------------
                           Name: Mags Brennen,
                                    Anthony O'Reilly
                                   Title: Vice President, Vice
                               President

60

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                                          VAN KAMPEN PRIME RATE INCOME TRUST

                                        By: Van Kampen Investment Advisory Corp.

                     By: /s/ Howard Tiffen
                                            ------------------------------------
                           Name: Howard Tiffen
                                Title: Managing Director

61

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                                      VAN KAMPEN SENIOR INCOME TRUST

                                        By: Van Kampen Investment Advisory Corp.

                     By: /s/ Howard Tiffen
                                            ------------------------------------
                           Name: Howard Tiffen
                                Title: Managing Director

62

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                   KZH CNC LLC

                 By: /s/ Susan Lee
                                            ------------------------------------
                       Name: Susan Lee
                               Title: Authorized Agent

63

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                        KZH PONDVIEW LLC

                 By: /s/ Susan Lee
                                            ------------------------------------
                       Name: Susan lee
                               Title: Authorized Agent

64

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                         KZH WATERSIDE LLC

                 By: /s/ Susan Lee
                                            ------------------------------------
                       Name: Susan Lee
                               Title: Authorized Agent

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Dates Referenced Herein

		Referenced-On Page
This ‘10-K’ Filing	Date	First	Last	Other Filings

Filed on:	3/27/03			None on these Dates
	2/28/03	1	2
For Period End:	12/31/02
	5/23/02	1
				List all Filings

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Filing Submission 0001169232-03-002313 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

Railamerica Inc/DE – ‘10-K’ for 12/31/02 – EX-10.86

On: Thursday, 3/27/03, at 9:18am ET · For: 12/31/02 · Accession #: 1169232-3-2313 · File #: 0-20618

Previous ‘10-K’: ‘10-K/A’ on 4/28/00 for 12/31/99 · Next: ‘10-K’ on 3/15/04 for 12/31/03 · Latest: ‘10-K’ on 2/23/12 for 12/31/11

Annual Report — Form 10-KFiling Table of Contents

EX-10.86 — Amendment No. 1 to Credit Agreement

Dates Referenced Herein

Annual Report — Form 10-K
Filing Table of Contents