Annual Report — [x] Reg. S-K Item 405 — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K405 Railamerica, Inc. 85 425K
2: EX-2.2 Merger Agreement 45 247K
3: EX-2.3 Stock Purchase Agreement 43 230K
4: EX-2.4 Letter Agreement 5 25K
5: EX-4.11 Warrant to Purchase/Stonegate 9 39K
6: EX-4.12 Warrant to Purchase/Railamerica 8 39K
7: EX-4.13 First Supplemental Indenture Dated 2/13/02 8 24K
8: EX-4.14 Second Supplemental Indenture Dated 1/24/02 8 25K
9: EX-10.79 Waiver and Amendment No. 3 to Credit Agreement 87 127K
10: EX-10.80 Change in Control Service Agreement 15 70K
11: EX-10.81 Service Agreement Dated 4/4/01 8 27K
12: EX-10.82 Amend. & Restated Employment Agreement (Marino) 13 62K
13: EX-10.83 Amend. & Restated Employment Agreement (Redfearn) 12 53K
14: EX-10.84 Executive Employment Agreement (Gary Spiegel) 12 53K
15: EX-21.1 Subsidiaries of the Company 2 14K
16: EX-23.1 Consent of Pricewaterhousecoopers 1 9K
17: EX-23.2 Consent of Langton Clarke Limitada 1 9K
EX-10.79 — Waiver and Amendment No. 3 to Credit Agreement
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EXHIBIT 10.79
EXECUTION COPY
WAIVER AND AMENDMENT NO. 3 TO CREDIT AGREEMENT
This WAIVER AND AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of December
27, 2001 (as amended, supplemented, amended and restated or otherwise modified
from time to time, this "Amendment"), is made by and among RAILAMERICA, INC., a
Delaware corporation ("Holdings"), PALM BEACH RAIL HOLDING, INC., a Delaware
corporation and a wholly-owned Subsidiary of Holdings ("Intermediate Holdings"),
RAILAMERICA TRANSPORTATION CORP., a Delaware corporation and a wholly-owned
Subsidiary of Intermediate Holdings (the "Company"), RAILINK, LTD., a
corporation organized and existing under the laws of the Province of Alberta,
Canada (the "Canadian Borrower"), and FREIGHT VICTORIA LIMITED, a corporation
organized and existing under the laws of Australia (the "Australian Borrower"
and, together with the Company and the Canadian Borrower, the "Borrowers"), and
the Lenders (as defined in the Credit Agreement referred to below).
W I T N E S S E T H:
WHEREAS, Holdings, Intermediate Holdings, the Borrowers, the various
financial institutions and other Persons from time to time parties thereto as
lenders (collectively, the "Lenders"), Credit Suisse First Boston (as successor
in interest to DLJ Capital Funding, Inc.), as Syndication Agent, Lead Arranger
and Sole Book Running Manager, The Bank of Nova Scotia, as Administrative Agent,
and ING (U.S.) Capital LLC and Fleet National Bank, each a Documentation Agent,
have heretofore entered into a Credit Agreement, dated as of February 4, 2000
(as amended by Waiver and Amendment No. 1 to Credit Agreement dated as of August
2, 2000 and by Waiver and Amendment No. 2 to Credit Agreement dated as of
December 12, 2000, the "Credit Agreement");
WHEREAS, the Obligors have requested that the Lenders waive and/or amend
certain provisions of the Credit Agreement, and the Lenders agree, subject to
the conditions and on the terms set forth herein, to grant the Obligors'
request;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, capitalized terms defined in the Credit
Agreement shall have the same meanings when used in this Amendment. The
following additional terms, as used herein, shall have the following respective
meanings:
"Acquisition Agreements" means the ParkSierra Acquisition Agreement and
the StatesRail Acquisition Agreements, collectively.
"Amendment" has the meaning set forth in the preamble hereof.
"Amendment No. 3 Effective Date" has the meaning set forth in Article IV.
"Australian Intercompany Notes" shall mean (i) the Promissory Notes dated
as of September 17, 2001 (but with effect from February 4, 2000) bearing
interest at 7.5% per annum and having a stated principal amount of
AUS$101,274,069 between Freight Victoria Limited and RailAmerica Australia Pty.
Ltd., between RailAmerica Australia Pty. Ltd. and RailAmerica Australia, Inc.
and between RailAmerica Australia, Inc. and the Company and (ii) the Promissory
Note dated as of September 17, 2001 (but with effect from February 4, 2000)
bearing interest at 10% per annum and having a stated principal amount of
AUS$28,655,722 between Freight Victoria Limited and RailAmerica Australia Pty.
Ltd.
"New StatesRail" means New StatesRail Holdings, Inc., a Delaware
corporation.
"ParkSierra" means ParkSierra Corp., a California corporation.
"ParkSierra Acquisition" means the acquisition by merger by ParkSierra
Acquisition Corp., a California corporation and a wholly-owned direct subsidiary
of Holdings, of 100% of the outstanding Capital Stock of ParkSierra pursuant to
the ParkSierra Acquisition Agreement, for aggregate consideration not exceeding
$48,000,000 plus the amount of any adjustments to the purchase price based on
ParkSierra's working capital effected in accordance with the ParkSierra
Acquisition Agreement.
"ParkSierra Acquisition Agreement" means the Amended and Restated
Agreement and Plan of Merger dated as November 26, 2001 among Holdings,
ParkSierra and ParkSierra Acquisition Corp., as in effect on the Amendment No. 3
Effective Date.
"Permitted Private Placement" means the issuance of up to $60,000,000 of
Holdings Common Stock (valued at approximately $12.50 per share) pursuant to the
Subscription Agreements between Holdings and the various subscribers party
thereto.
"StatesRail" means StatesRail, Inc., a Delaware corporation.
"StatesRail Acquisition Agreements" means the StatesRail Merger Agreement,
the StatesRail Stock Purchase Agreement and the StatesRail Letter Agreement,
collectively.
"StatesRail Acquisitions" means the StatesRail Merger and the StatesRail
Stock Purchase, collectively.
"StatesRail Extension Letter" means the Extension Letter Agreement dated
as of November 9, 2001 between Holdings and Kauri, Inc., a Delaware corporation
and a stockholder of StatesRail and a member of StatesRail L.L.C., a Delaware
limited liability company, as in effect on the Amendment No. 3 Effective Date.
"StatesRail Letter Agreement" means the Letter Agreement dated as of
October 12, 2001 among Holdings, StatesRail Acquisition Corp., West Texas and
Lubbock Railroad Company, Inc., StatesRail, New StatesRail, StatesRail L.L.C.,
the stockholders of New StatesRail and the members of StatesRail L.L.C., as in
effect on the Amendment No. 3 Effective Date.
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"StatesRail Merger" means the acquisition by StatesRail Acquisition Corp.,
a Delaware corporation and a wholly-owned direct subsidiary of Holdings, of 100%
of the outstanding Capital Stock of StatesRail for aggregate consideration not
exceeding $51,186,000.
"StatesRail Merger Agreement" means the Merger Agreement dated as of
October 12, 2001 among Holdings, StatesRail Acquisition Corp., StatesRail and
all of the stockholders of StatesRail, as amended by the StatesRail Extension
Letter Agreement and the StatesRail Second Extension Letter and as otherwise in
effect on the Amendment No. 3 Effective Date.
"StatesRail Second Extension Letter" means the Second Extension Letter
Agreement dated as of November 16, 2001 between Holdings and Kauri, Inc., as in
effect on the Amendment No. 3 Effective Date.
"StatesRail Stock Purchase" means the acquisition by West Texas and
Lubbock Railroad Company, Inc., a Delaware corporation and a wholly-owned
subsidiary of the Company, or another wholly-owned subsidiary of the Company of
100% of the outstanding Capital Stock of New StatesRail for aggregate
consideration not exceeding $38,814,000.
"StatesRail Stock Purchase Agreement" means the Stock Purchase Agreement
dated as of October 12, 2001 among Holdings, West Texas and Lubbock Railroad
Company, Inc., New StatesRail, StatesRail L.L.C. and the members of StatesRail
L.L.C., as amended by the StatesRail Extension Letter Agreement and the
StatesRail Second Extension Letter and as otherwise in effect on the Amendment
No. 3 Effective Date.
ARTICLE II
WAIVER OF CERTAIN PROVISIONS OF THE CREDIT AGREEMENT
SUBPART 2.1. Waiver of Certain Provisions of Section 3.1.1(h). Effective
on (and subject to the occurrence of) the Amendment No. 3 Effective Date, and in
reliance upon the representations and warranties made herein, the provisions of
Section 3.1.1(h) of the Credit Agreement requiring the Company to prepay Term
Loans in an amount equal to 50% of the Net Equity Proceeds of the Permitted
Private Placement, are hereby waived to the extent (but only to the extent) that
on or prior to January 31, 2002, such Net Equity Proceeds, together with all Net
Equity Proceeds of the Permitted Private Placement not otherwise required to be
used to prepay Term Loans in accordance with Section 3.1.1(h) of the Credit
Agreement, are used (i) to finance, in the aggregate, not less than $18,800,000
of the purchase price for the ParkSierra Acquisition and not less than
$31,200,000 of the purchase price for the StatesRail Acquisitions or (ii) to the
extent (but only to the extent), the aggregate amount of all Net Equity Proceeds
of the Permitted Private Placement exceed $50,000,000, to fund working capital
of the Company and the Restricted Subsidiaries. It is understood and agreed that
if the ParkSierra Acquisition and the StatesRail Acquisitions, or any of them,
shall not have been consummated on or prior to January 31, 2002, all Net Equity
Proceeds of the Permitted Private Placement which have not theretofor been used
to finance all or a portion of the purchase price of such transactions and
which, in the absence of the waiver contained in the first sentence of this
Subpart 2.1, would be required to be used to prepay Term Loans in accordance
with Section 3.1.1(h) of the Credit Agreement shall be used on January 31, 2002
to prepay Term Loans in accordance with Section 3.1.1(h) of the Credit
Agreement.
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SUBPART 2.2. Waiver of Certain Provisions of Section 7.1.10. Effective on
(and subject to the occurrence of) the Amendment No. 3 Effective Date, and in
reliance upon the representations and warranties made herein, the provisions of
Section 7.1.10 of the Credit Agreement requiring Net Equity Proceeds to be used
by Holdings either to redeem or repay Intermediate Holdings Asset Bridge Notes
or to make a capital contribution to the common equity of the Company are hereby
waived to the extent (but only to the extent) that on or prior to January 31,
2002, such Net Equity Proceeds are used (i) to finance, in the aggregate, not
less than $18,800,000 of the purchase price for the ParkSierra Acquisition and
not less than $31,200,000 of the purchase price for the StatesRail Acquisitions
or (ii) to the extent (but only to the extent), the aggregate amount of all Net
Equity Proceeds of the Permitted Private Placement exceed $50,000,000, to fund
working capital of the Company and the Restricted Subsidiaries. It is understood
and agreed that if the ParkSierra Acquisition and the StatesRail Acquisitions,
or any of them, shall not have been consummated on or prior to January 31, 2002,
all Net Equity Proceeds of the Permitted Private Placement which have not
theretofor been used to finance all or a portion of the purchase price of such
transactions and which, in the absence of the waiver contained in the first
sentence of this Subpart 2.2, would be required to be used to redeem or repay
Intermediate Holdings Asset Bridge Notes or contributed to the common equity of
the Company shall be used on January 31, 2002 to redeem or repay Intermediate
Holdings Asset Bridge Notes or contributed to the common equity of the Company
in accordance with Section 7.1.10 of the Credit Agreement.
SUBPART 2.3. Waiver of Certain Provisions of Section 7.2.12(b). Effective
on (and subject to the occurrence of) the Amendment No. 3 Effective Date, and in
reliance on the representations and warranties made herein, the provisions of
Section 7.2.12(b) of the Credit Agreement prohibiting amendments, supplements,
waivers or other modifications of the Transaction Documents are hereby waived to
the extent (but only to the extent) necessary to permit the Company and/or one
or more of its Restricted Subsidiaries to amend and restate the Australian
Intercompany Notes to read in full as set forth in Exhibits I through IV hereto.
ARTICLE III
AMENDMENTS TO CREDIT AGREEMENT
Subject to the conditions and on the terms set forth herein, and in
reliance on the representations and warranties of the Obligors contained herein,
the Credit Agreement is hereby amended, as of the Amendment No. 3 Effective Date
(or such later date as may be specified in this Article III with respect to
particular amendments), in accordance with this Article III.
SUBPART 3.1. Amendments to Certain Definitions Set Forth in Section 1.1.
(a) The definitions of "Agreement", "Amendment No. 1", "Commitment",
"Commitment Amount", "Commitment Termination Date", "Note", "Percentage",
"Stated Maturity Date", "Term Loans" and "Tranche" set forth in Section 1.1 of
the Credit Agreement are hereby amended and restated to read in full as follows:
"Agreement" means this Credit Agreement, as originally in
effect on the Effective Date, as amended by Amendment No. 1,
Amendment No. 2 and
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Amendment No. 3 and as further amended, supplemented, amended and
restated or otherwise modified from time to time.
"Amendment No. 1" means that certain Waiver and Amendment No.
1 to Credit Agreement, dated as of August 2, 2000, among the
Borrowers and the Agents and consented to by the Lenders that
provided their consent thereto to the Administrative Agent.
"Commitment" means, as the context may require, (i) a Lender's
Term A Loan Commitment, Term B Loan Commitment, Term C Loan
Commitment, Revolving Loan Commitment or Letter of Credit Commitment
or (ii) the Swing Line Lender's Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the
Term A Loan Commitment Amount, the Term B Loan Commitment Amount,
the Term C Loan Commitment Amount, the U.S. Revolving Loan
Commitment Amount, the Canadian Revolving Loan Commitment Amount,
the Australian Revolving Loan Commitment Amount, the Letter of
Credit Commitment Amount or the Swing Line Loan Commitment Amount.
"Commitment Termination Date" means, as the context may
require, the Term A Loan Commitment Termination Date, the Term B
Loan Commitment Termination Date, the Term C Loan Commitment
Termination Date or the Revolving Loan Commitment Termination Date.
"Note" means, as the context may require, a Revolving Note, a
Term A Note, a Term B Note, a Term C Note, a Swingline Note or an
Acceptance Note.
"Percentage" means, as the context may require, any Lender's
U.S. Revolving Loan Percentage, Canadian Revolving Loan Percentage,
Australian Revolving Loan Percentage, Term A Percentage, Term B
Percentage or Term C Percentage.
"Stated Maturity Date" means
(a) with respect to all Term A Loans, December 31, 2005;
(b) with respect to all Term B Loans, December 31, 2006;
(c) with respect to all Term C Loans, December 31, 2006; and
(d) with respect to all Revolving Loans and Swing Line Loans,
December 31, 2005.
"Term Loans" means, collectively, the Term A Loans, the Term B
Loans and the Term C Loans.
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"Tranche" means, as the context may require, the Loans
constituting Term A Loans, Term B Loans, Term C Loans, Revolving
Loans or Swing Line Loans.
(b) Clause (a) of the definition of "Applicable Margin" set forth in
Section 1.1 of the Credit Agreement is hereby amended by inserting the phrase
"or Term C Loan" immediately after the phrase "Term B Loan" contained therein.
SUBPART 3.2. Addition of Certain Definitions to Section 1.1. Section 1.1
of the Credit Agreement is hereby amended by inserting the following definitions
in such Section in the appropriate alphabetical sequence:
"Amendment No. 3" means that certain Waiver and Amendment No.
3 to Credit Agreement, dated as of December 27, 2001, among
Holdings, Intermediate Holdings, the Borrowers and the Lenders.
"Amendment No. 3 Effective Date" means the date on which
Amendment No. 3 became effective in accordance with its terms.
"New StatesRail" means New StatesRail Holdings, Inc., a
Delaware corporation.
"ParkSierra" means ParkSierra Corp., a California corporation.
"ParkSierra Acquisition" means the acquisition by merger by
ParkSierra Acquisition Corp., a California corporation and a
wholly-owned direct subsidiary of Holdings, of 100% of the
outstanding Capital Stock of ParkSierra pursuant to the ParkSierra
Acquisition Agreement, for aggregate consideration not exceeding
$48,000,000 plus the amount of any adjustments to the purchase price
based on ParkSierra's working capital effected in accordance with
the ParkSierra Acquisition Agreement.
"ParkSierra Acquisition Agreement" means the Amended and
Restated Agreement and Plan of Merger dated as November 26, 2001
among Holdings, ParkSierra and ParkSierra Acquisition Corp., as in
effect on the Amendment No. 3 Effective Date.
"Permitted Private Placement" means the issuance of up to
$60,000,000 of Holdings Common Stock (valued at approximately $12.50
per share) pursuant to the Subscription Agreements between Holdings
and the various subscribers party thereto.
"StatesRail" means StatesRail, Inc., a Delaware corporation.
"StatesRail Acquisition Agreements" means the StatesRail
Merger Agreement, the StatesRail Stock Purchase Agreement and the
StatesRail Letter Agreement, collectively.
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"StatesRail Acquisitions" means the StatesRail Merger and the
StatesRail Stock Purchase, collectively.
"StatesRail Extension Letter" means the Extension Letter
Agreement dated as of November 9, 2001 between Holdings and Kauri,
Inc., a Delaware corporation and a stockholder of StatesRail and a
member of StatesRail L.L.C., a Delaware limited liability company,
as in effect on the Amendment No. 3 Effective Date.
"StatesRail Letter Agreement" means the Letter Agreement dated
as of October 12, 2001 among Holdings, StatesRail Acquisition Corp.,
West Texas and Lubbock Railroad Company, Inc., StatesRail, New
StatesRail, StatesRail L.L.C., the stockholders of New StatesRail
and the members of StatesRail L.L.C., as in effect on the Amendment
No. 3 Effective Date.
"StatesRail Merger" means the acquisition by StatesRail
Acquisition Corp., a Delaware corporation and a wholly-owned direct
subsidiary of Holdings, of 100% of the outstanding Capital Stock of
StatesRail for aggregate consideration not exceeding $51,186,000.
"StatesRail Merger Agreement" means the Merger Agreement dated
as of October 12, 2001 among Holdings, StatesRail Acquisition Corp.,
StatesRail and all of the stockholders of StatesRail, as amended by
the StatesRail Extension Letter Agreement and the StatesRail Second
Extension Letter and as otherwise in effect on the Amendment No. 3
Effective Date.
"StatesRail Second Extension Letter" means the Second
Extension Letter Agreement dated as of November 16, 2001 between
Holdings and Kauri, Inc., as in effect on the Amendment No. 3
Effective Date.
"StatesRail Stock Purchase" means the acquisition by West
Texas and Lubbock Railroad Company, Inc., a Delaware corporation and
a wholly-owned subsidiary of the Company, or another wholly-owned
subsidiary of the Company of 100% of the outstanding Capital Stock
of New StatesRail for aggregate consideration not exceeding
$38,814,000.
"StatesRail Stock Purchase Agreement" means the Stock Purchase
Agreement dated as of October 12, 2001 among Holdings, West Texas
and Lubbock Railroad Company, Inc., New StatesRail, StatesRail
L.L.C. and the members of StatesRail L.L.C., as amended by the
StatesRail Extension Letter Agreement and the StatesRail Second
Extension Letter and as otherwise in effect on the Amendment No. 3
Effective Date.
"Term C Loan" is defined in clause (c) of Section 2.1.3.
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"Term C Loan Commitment" means, relative to any Lender, such
Lender's obligation (if any) to make Term C Loans pursuant to clause
(c) of Section 2.1.3.
"Term C Loan Commitment Amount" means, on any date,
$50,000,000.
"Term C Loan Commitment Termination Date" means the earliest
of:
(a) January 31, 2002 (if the Term C Loans have not been made
on or prior to such date);
(b) the date on which the Term C Loans are made in accordance
with clause (c) of Section 2.1.3 (immediately after the making of
the Term C Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (b) or (c),
the Term C Loan Commitments shall terminate automatically and
without any further action.
"Term C Note" means a promissory note of the Company payable
to any Lender, in the form of Exhibit A-6 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Company to such
Lender resulting from outstanding Term C Loans, and also means all
other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Term C Percentage" means, relative to any Lender, the
applicable percentage relating to Term C Loans set forth opposite
its name on Schedule I to Amendment No. 3 under the Term C Loan
Commitment column or set forth in a Lender Assignment Agreement
under the Term C Loan Commitment column, as such percentage may be
adjusted from time to time pursuant to Lender Assignment Agreements
executed by such Lender and its Assignee Lender and delivered
pursuant to Section 11.11.1. A Lender shall not have any Term C Loan
Commitment if its percentage under the Term C Loan Commitment column
is zero or is blank.
SUBPART 3.3. Amendment to Section 2.1.3. Section 2.1.3 of the Credit
Agreement is hereby amended by (a) replacing the phrase "or a Term B Loan
Commitment" contained therein with the phrase ", a Term B Loan Commitment or a
Term C Loan Commitment", (b) by replacing the period (".") at the end of clause
(b) thereof with a semi-colon (";") followed by the word "and" and (c) by
inserting the following as a new clause (c):
(c) make loans (relative to such Lender, its "Term C Loans")
to the Company equal to such Lender's Term C Loan Percentage of the
aggregate amount of the Borrowing of Term C Loans requested by the
Company to be made on such day.
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SUBPART 3.4. Amendment to Section 2.1.4(d). Clause (d) of Section 2.1.4 of
the Credit Agreement is hereby amended by replacing the phrase "or all Term B
Loans" set forth therein with the phrase ", all Term B Loans or all Term C
Loans" and by inserting the following as new clauses (iii) and (iv):
(iii) of all Lenders made on the date of funding of the Term C Loans
would exceed the Term C Loan Commitment Amount; or
(iv) of any such Lender with a Term C Loan Commitment made on the
date of funding of the Term C Loans would exceed such Lender's Percentage
of the Term C Loan Commitment Amount; or
SUBPART 3.5. Amendment to Section 2.7(c). Section 2.7(c) of the Credit
Agreement is hereby amended by inserting the phrase ", a Term C Note"
immediately after the phrase "a Term B Note" in the first sentence thereof.
SUBPART 3.6. Amendments to Section 3.1.1.
(a) Clause (A) of Section 3.1.1(a)(i) of the Credit Agreement is
hereby amended by replacing each occurrence of the phrase "Term A Loans
and Term B Loans" with the phrase "Term A Loans, Term B Loans and Term C
Loans" and by replacing the phrase "Term A Loans or Term B Loans" with the
phrase "Term A Loans, Term B Loans or Term C Loans".
(b) Section 3.1.1 of the Credit Agreement is hereby amended by
inserting the following as new clauses (k) and (l):
(k) On the Stated Maturity Date and on each Quarterly Payment
Date occurring during any period set forth below, the Company shall
make a scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term C Loans in an amount equal to the amount
set forth below opposite the Stated Maturity Date or such Quarterly
Payment Date, as applicable:
[Download Table]
Amount of Required
Period Principal Repayment
------ -------------------
Amendment No 3 Effective Date through
(and including) 12/31/2006 $ 125,000
$ 47,375,000 or the then
Stated Maturity Date for outstanding principal amount
Term C Loans of all Term C Loans, if
different.
(l) On January 31, 2002, the Company shall prepay the Term C
Loans, and such Term C Loans shall mature and become due and payable
in an aggregate principal amount (together with accrued and unpaid
interest thereon) equal to (i) in the event the ParkSierra
Acquisition shall not have been consummated on or prior to such
date, the sum of (A) $4,200,000 plus (B) the
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aggregate amount of proceeds of the Term C Loans which were
permitted to be used to finance all or a portion of the StatesRail
Acquisitions in accordance with Section 7.1.7(a)(ii) hereof and
which have not been so used on or prior to such date, (ii) in the
event the StatesRail Acquisitions shall not have been consummated on
or prior to such date, the sum of (A) $38,800,000 plus (B) the
aggregate amount of proceeds of the Term C Loans which were
permitted to be used to finance all or a portion of the ParkSierra
Acquisition in accordance with Section 7.1.7(a)(ii) hereof and which
have not been so used on or prior to such date or (iii) in the event
neither the StatesRail Acquisitions nor the ParkSierra Acquisition
shall have been consummated on or prior to such date, the aggregate
principal amount of the Term C Loans then outstanding.
SUBPART 3.7. Amendment to Section 3.1.2(b). Section 3.1.2(b) of the Credit
Agreement is hereby amended by (a) replacing the phrase "Term A Loans and Term B
Loans" with the phrase "Term A Loans, Term B Loans and Term C Loans", (b)
replacing the phrase "Term A Loans and the Term B Loans" with the phrase "Term A
Loans, the Term B Loans and the Term C Loans", (c) replacing the phrase "Term A
Loans or Term B Loans" with the phrase "Term A Loans, Term B Loans or Term C
Loans", (d) replacing each occurrence of the phrase "outstanding Term A Loans"
with the phrase "outstanding Term A Loans and Term C Loans" and (e) by inserting
the following immediately after the first occurrence of the amended phrase "Term
A Loans and Term C Loans":
(with the amount of such prepayment of the Term A Loans and
the Term C Loans being applied to the remaining Term A Loans
or Term C Loans, as the case may be, amortization payments,
pro rata in accordance with the amount of each such remaining
Term Loan amortization payments)
SUBPART 3.8. Amendments to Section 7.1.7(a).
(a) Clause (i) of Section 7.1.7(a) is hereby amended by
replacing the phrase "Term Loans" with the phrase "Term A Loans and
Term B Loans".
(b) Section 7.1.7(a) is hereby further amended by renumbering
clauses (ii), (iii) and (iv) thereof as clauses (iii), (iv) and (v)
and by inserting the following as a new clause (ii):
(ii) in the case of the Term C Loans, (A) to finance a portion
of the consummation of the ParkSierra Acquisition in an amount
not greater than $4,200,000 plus the aggregate amount of any
purchase price adjustments effected in accordance with the
ParkSierra Acquisition Agreement; provided that at least
$18,800,000 of the purchase price for the ParkSierra
Acquisition shall have been paid in cash from Net Equity
Proceeds of the Permitted Private Placement and at least
$25,000,000 of such purchase price shall have been paid in
Holdings Common Stock; (B) to finance a portion of the
consummation of the StatesRail Acquisitions in an amount not
greater than $38,800,000; provided that at least $31,200,000
of the purchase price for the StatesRail Acquisitions shall
have been paid in cash from Net Equity Proceeds of the
Permitted Private Placement and at least $20,000,000
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of such purchase price shall have been paid in Holdings Common
Stock; (C) to prepay Revolving Loans and Swingline Loans; (D)
to pay fees and expenses incurred in connection with the
ParkSierra Acquisition and/or the StatesRail Acquisitions;
provided that the aggregate amount of such fees and expenses
shall not exceed $2,500,000; and (E) for general corporate
purposes of the Company and its Subsidiaries;
SUBPART 3.9. Amendment to Section 7.2.1.
(a) Section 7.2.1(b) Credit Agreement is hereby amended by
renumbering clause (iii) thereof as clause (iv), inserting a comma (",")
immediately before the word "and" at the end of clause (ii) thereof and
inserting the following as a new clause (iii):
(iii) acquiring each of ParkSierra and StatesRail pursuant to the
Acquisition Agreements; provided that immediately following each
such acquisition, 100% of the acquired assets and/or Capital Stock
of ParkSierra and/or StatesRail, as the case may be, shall be
contributed by Holdings to the capital of Intermediate Holdings
(b) Section 7.2.1(c) of the Credit Agreement is hereby amended by
renumbering clause (iii) thereof as clause (iv), inserting a comma (",")
immediately before the word "and" at the end of clause (ii) thereof and
inserting the following as a new clause (iii):
(iii) its acquisition of each of ParkSierra and StatesRail pursuant
to the capital contribution referred to in Section 7.2.1(b)(iii)
above; provided that immediately following each such acquisition,
100% of the acquired assets and/or Capital Stock of ParkSierra
and/or StatesRail, as the case may be, shall be contributed by
Intermediate Holdings to the capital of the Company
SUBPART 3.10. Amendment to Section 7.2.5. Section 7.2.5(g) of the Credit
Agreement is hereby amended by inserting at the beginning thereof the phrase
"the ParkSierra Acquisition, the StatesRail Acquisition (in each case effected
pursuant to the relevant Acquisition Agreement(s), without giving effect to any
material amendments, supplements, modifications or waivers thereof entered into
after the Amendment Effective Date without the prior written consent of the
Required Lenders) and other".
SUBPART 3.11. Amendment to Section 7.2.6. Clause (b) of Section 7.2.6 of
the Credit Agreement is hereby amended by renumbering subclause (viii) as
subclause (ix) and by inserting the following immediately before the word "and"
at the end of subclause (vi) thereof:
, (viii) so long as no Specified Default has occurred and is
continuing or would be created thereby, up to $11,186,000 of the
proceeds of the Term C Loans to pay a portion of the purchase price
for the ParkSierra Acquisition and/or the StatesRail Acquisition,
provided that such amount is so used within 30 days following the
date of such Restricted Payment
-11-
SUBPART 3.12. Amendment to Section 7.2.7.
(a) Upon the first to occur of the ParkSierra Acquisition and the
StatesRail Acquisitions (but in any event not prior to the Amendment No. 3
Effective Date), Section 7.2.7(a) of the Credit Agreement shall be
automatically amended by deleting the table contained therein and (i) if
the ParkSierra Acquisition is the first to occur, by inserting in its
place the following:
[Download Table]
Capital
Period Expenditure Amount
------------------ ------------------
1/1/01 to 12/31/01 $54,500,000
1/1/02 to 12/31/02 $57,000,000
1/1/03 to 12/31/03 $58,000,000
1/1/04 to 12/31/04 $59,000,000
1/1/05 to 12/31/05 $60,000,000
1/1/06 to 12/31/06 $61,000,000
or (ii) if the StatesRail Acquisitions are the first to occur, by
inserting in its place the following:
[Download Table]
Capital
Period Expenditure Amount
------------------ ------------------
1/1/01 to 12/31/01 $54,500,000
1/1/02 to 12/31/02 $61,000,000
1/1/03 to 12/31/03 $62,000,000
1/1/04 to 12/31/04 $63,000,000
1/1/05 to 12/31/05 $64,000,000
1/1/06 to 12/31/06 $65,000,000
(b) Thereafter, upon (but not before) consummation of the other
Acquisition, Section 7.2.7(a) of the Credit Agreement shall be further
amended by deleting the table contained therein and inserting in its place
the following:
[Download Table]
Capital
Period Expenditure Amount
------------------ ------------------
1/1/01 to 12/31/01 $54,500,000
1/1/02 to 12/31/02 $65,000,000
1/1/03 to 12/31/03 $66,000,000
1/1/04 to 12/31/04 $67,000,000
1/1/05 to 12/31/05 $68,000,000
1/1/06 to 12/31/06 $69,000,000
SUBPART 3.13. Amendment to Schedule I. To correct the misplacement of such
item on Schedule I to the Credit Agreement, the intercompany promissory note
originally referred to as part of Item 7.2.2(b) of such Schedule I shall be
redesignated as part of Item 7.2.2(c), such that Item 7.2.2(c) shall read in
full as follows:
-12-
ITEM 7.2.2(c) Indebtedness as of the Effective Date: Promissory Note
dated as of February 4, 2000 having a stated principal amount of US
$100,860,386.69 between Freight Victoria Limited and RailAmerica
Transportation Corp.
SUBPART 3.14. Amendment to Exhibits to Credit Agreement. The Credit
Agreement is hereby amended by inserting Exhibit A-6 to this Amendment as a new
Exhibit A-6 to the Credit Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
This Amendment (and the amendments, modifications and waivers contained
herein) shall become effective on the date (the "Amendment No. 3 Effective
Date") when each of the conditions set forth in this Article IV shall have been
satisfied.
SUBPART 4.1. Counterparts and Lender Consents. The Agents shall have
received counterparts hereof executed on behalf of the Obligors, and the
Administrative Agent shall have confirmed to the Obligors and the Syndication
Agent that it has received (i) from the Required Lenders their respective
consents hereto and (ii) from one or more new or existing Lenders their
respective agreements to provide, in the aggregate, Term C Loan Commitments in
an amount at least equal to the Term C Loan Commitment Amount.
SUBPART 4.2. New Facility Fee. The Administrative Agent shall have
received, for the account of each Lender with a Term C Loan Commitment, a
facility fee in an amount equal to 0.125% of the product of such Lender's
Percentage of the Term C Loan Commitment Amount multiplied by the Term C Loan
Commitment Amount.
SUBPART 4.3. Consent Fee. The Administrative Agent shall have received,
for the account of each Lender that delivers an executed signature page to this
Amendment to the Syndication Agent prior to 5:00 p.m., New York City time,
December 27, 2001, a consent fee in an amount equal to 0.125% of the sum of (i)
the outstanding principal amount of Term Loans owing to such Lender plus (ii)
such Lender's Percentage of the Commitment to make Revolving Loans multiplied by
the Revolving Loan Commitment Amount on such date.
SUBPART 4.4. Financing Statements, Etc.. The Agents shall have received
appropriate financing statements and continuation statements (Form UCC-1, Form
UCC-3 or such other financing statements, continuation statements or similar
notices as shall be required by local law) fully authenticated and authorized
for filing under the Uniform Commercial Code (including Revised Article 9
thereof) or other applicable local law of each jurisdiction in which the filing
of a financing statement or continuation statement or giving of notice or other
similar action may be required, or reasonably requested by the Agents, to
perfect or maintain the perfection of the security interests intended to be
created by the Loan Documents.
SUBPART 4.5. Acquisition Agreements. The Agents shall have received (with
copies for each Lender that shall have requested in writing copies thereof)
copies of fully executed versions of the Acquisition Agreements, all
subscription agreements relating to the Permitted Private Placement and all
other agreements, documents, instruments, certificates, filings,
-13-
consents, approvals, board of directors resolutions and opinions furnished
pursuant to or in connection with the ParkSierra Acquisition, the StatesRail
Acquisition and/or the Permitted Private Placement, in each case certified to be
true and complete copies thereof by an Authorized Officer of Holdings,
Intermediate Holdings and the Company. Each such agreement or other document
shall be in full force and effect and there shall not have been any forbearance
to exercise any material rights with respect to any of the terms or provisions
relating to the conditions to the consummation of the ParkSierra Acquisition,
the StatesRail Acquisition and/or the Permitted Private Placement set forth in
the Acquisition Agreements and/or such subscription agreements and related
agreements and other documents unless agreed to by the Required Lenders.
SUBPART 4.6. Permitted Private Placement. The Permitted Private Placement
shall have been consummated in accordance with the subscription agreements
related thereto delivered to the Administrative Agent in accordance with Subpart
4.5 above, and such subscription agreements shall not have been amended,
supplemented, modified or waived without the consent of the Administrative
Agent. Holdings shall have received Net Equity Proceeds from the Permitted
Private Placement at least equal to $50,000,000.
SUBPART 4.7. Amendment No. 3 Effective Date Certificate. The
Administrative Agent shall have received, with counterparts for each Lender, a
certificate, dated the Amendment No. 3 Effective Date, in form and substance
satisfactory to the Syndication Agent and duly executed and delivered by an
Authorized Officer of each of Holdings, Intermediate Holdings and the Company,
in which certificate each of Holdings, Intermediate Holdings and the Company
shall agree and acknowledge that the statements made therein shall be deemed to
be true and correct representations and warranties of each of Holdings,
Intermediate Holdings and the Company as of such date, and, at the time each
such certificate is delivered, such statements shall in fact be true and
correct. All documents and agreements required to be appended to such
certificate shall be in form and substance reasonably satisfactory to the
Syndication Agent.
SUBPART 4.8. Other Costs and Expenses. The Agent shall have received all
fees, costs and expenses due and payable pursuant to Sections 3.3 and 11.3 of
the Credit Agreement to the extent then invoiced.
SUBPART 4.9. Opinion of Counsel. The Agents shall have received an
opinion, dated the Amendment No. 3 Effective Date and addressed to the Agents
and all of the Lenders, from Greenberg Traurig, P.A., counsel to the Obligors,
in form and substance satisfactory to the Agents.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SUBPART 5.1. Representations and Warranties. In order to induce the
Lenders to consent to the amendments and waivers contained herein and to enter
into this Amendment, each Obligor, jointly and severally, represents and
warrants as set forth below:
(a) After giving effect to this Amendment, the amendment and waiver
of certain provisions of the Credit Agreement do not impair the validity,
effectiveness or priority of
-14-
the Liens granted pursuant to any Loan Documents relating thereto (the
"Security Documents"), and such Liens continue unimpaired with the same
priority to secure repayment of all Obligations, including the Term C
Loans, whether heretofore or hereafter incurred. The amendment and waiver
of certain provisions of the Credit Agreement effected pursuant to this
Amendment do not require that any new filings be made or other action
taken to perfect or to maintain the perfection of such Liens. The position
of the Lenders with respect to such Liens, the Collateral (as defined in
the Security Documents) in which a security interest was granted pursuant
to the Security Documents, and the ability of the Administrative Agent to
realize upon such Liens pursuant to the terms of the Security Documents
have not been adversely affected in any material respect by the amendment
and waiver of certain provisions of the Credit Agreement effected pursuant
to this Amendment or by the execution, delivery, performance or
effectiveness of this Amendment.
(b) Each Obligor reaffirms as of the Amendment No. 3 Effective Date
such Person's respective covenants and agreements contained in the Credit
Agreement, each Security Document to which such Person is a party,
including, in each case, as such covenants and agreements may be modified
by this Amendment. Each such Obligor further confirms that each such Loan
Document to which such Person is a party is and shall continue to be in
full force and effect and the same are hereby ratified, approved and
confirmed in all respects, except that upon the occurrence of the
Amendment No. 3 Effective Date, all references in such Loan Documents to
the "Credit Agreement", "Loan Documents", "thereunder", "thereof",
"therein" or words of like or similar import shall mean and be a reference
to the Credit Agreement and the Loan Documents as amended hereby.
(c) Both before and immediately after giving effect to this
Amendment, the representations and warranties set forth in Article VI of
the Credit Agreement (excluding, however, those contained in Section 6.15
of the Credit Agreement) and each other Loan Document are, in each case,
true and correct (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and correct
as of such earlier date).
SUBPART 5.2. Validity, etc. This Amendment constitutes the legal, valid
and binding obligation of the Obligors enforceable in accordance with its terms
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
SUBPART 5.3. No Default. Both immediately before and after giving effect
to this Amendment, no Default has occurred and is continuing.
SUBPART 5.4. Solvency. Neither the making of the Term C Loans, the
guaranty of the Term C Loans by the Guarantors pursuant to the Guarantees nor
any other transaction contemplated to occur on the Amendment No. 3 Effective
Date will involve or result in any fraudulent transfer or fraudulent conveyance
under the provisions of Section 548 of the
-15-
Bankruptcy Code (11 U.S.C. Sections 101 et seq., as from time to time hereafter
amended, and any successor or similar statute) or any applicable state law
respecting fraudulent transfers or fraudulent conveyances. On the Amendment No.
3 Effective Date, after giving effect to the making of the Term C Loans,
Holdings and its Subsidiaries, Intermediate Holdings and its Subsidiaries and
the Company and the Restricted Subsidiaries, in each case taken as a whole, are
Solvent.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SUBPART 6.1. Ratification of and References to the Credit Agreement. This
Amendment shall be deemed to be an amendment to the Credit Agreement, and the
Credit Agreement, as amended hereby, is hereby ratified, approved and confirmed
in each and every respect. All references to the Credit Agreement in any other
document, instrument, agreement or writing shall hereafter be deemed to refer to
the Credit Agreement as amended hereby. Other than as specifically provided
herein, this Amendment shall not operate as a waiver or amendment of any right,
power or privilege of any Agent or any Lender under the Credit Agreement or any
other Loan Document or of any other term or condition of the Credit Agreement or
any other Loan Document, nor shall the entering into of this Amendment preclude
any Agent and/or any Lender from refusing to enter into any further waivers or
amendments with respect thereto.
SUBPART 6.2. Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
SUBPART 6.3. Execution in Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement. A counterpart hereof executed and delivered by facsimile shall be
effective as an original.
SUBPART 6.4. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
SUBPART 6.5. Governing Law; Entire Agreement. THIS AMENDMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Amendment and the other Loan Documents constitute the
entire understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto.
-16-
IN WITNESS WHEREOF, the signatories 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/ BENNETT MARKS
------------------------------------
Name: Bennett Marks
Title: Senior Vice President and
Chief Financial Officer
PALM BEACH RAIL HOLDING, INC.
By: /s/ BENNETT MARKS
------------------------------------
Name: Bennett Marks
Title: Senior Vice President and
Chief Financial Officer
RAILAMERICA TRANSPORTATION CORP.
By: /s/ BENNETT MARKS
------------------------------------
Name: Bennett Marks
Title: Senior Vice President and
Chief Financial Officer
FREIGHT VICTORIA LIMITED
By: /s/ BENNETT MARKS
------------------------------------
Name: Bennett Marks
Title: Attorney-in-fact
RAILINK LTD.
By: /s/ BENNETT MARKS
------------------------------------
Name: Bennett Marks
Title: Senior Vice President and
Chief Financial Officer
K2H CYPRESTREE-1 LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
K2H ING-1 LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
K2H ING-2 LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
K2H ING-3 LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
K2H PONDVIEW LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
K2H RIVERSIDE LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
K2H STERLING LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
K2H WATERSIDE LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
K2H PAMCO LLC,
as a Lender
By: /s/ SUSAN LEE
------------------------------------
Name: Susan Lee
Title: Authorized Agent
SANKATAY ADVISORS, LLC, as Collateral
Manager for Brant Point II CBO 2000-1
Ltd., as Term Lender, as a Lender
By: /s/ DIANE J. EXTER
------------------------------------
Name: Diane J. Exter
Title: Managing Director Portfolio
Manger
ARCHIMEDES FUNDING III, Ltd.
By: ING CAPITAL ADVISORS LLC, as
Collateral Manager
By: /s/ STEVEN GORSKI
------------------------------------
Name: Steven Gorski
Title: Vice President and Senior
Credit Analyst
ARCHIMEDES FUNDING II, Ltd.
By: ING CAPITAL ADVISORS LLC, as
Collateral Manager
By: /s/ STEVEN GORSKI
------------------------------------
Name: Steven Gorski
Title: Vice President and Senior
Credit Analyst
SEQUILS-ING 1 (HBDGM), LTD.
By: ING CAPITAL ADVISORS LLC, as
Collateral Manager
By: /s/ STEVEN GORSKI
------------------------------------
Name: Steven Gorski
Title: Vice President and Senior
Credit Analyst
WELLS FARGO BANK, N.A.,
as a Lender
By: /s/ ANTHONY C. FRELS
------------------------------------
Name: Anthony C. Frels
Title: Vice President
HELLER FINANCIAL, INC.,
as a Lender
By: /s/ SCOTT ZIEMKE
------------------------------------
Name: Scott Ziemke
Title: Vice President
OCTAGON INVESTMENT PARTNERS IV, LTD
By: Octagon Credit Investors LLC, as
Collateral Manager
as a Lender
By: /s/ Michael B. Nechamkin
------------------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III, LTD
By: Octagon Credit Investors LLC, as
Portfolio Manager
as a Lender
By: /s/ Michael B. Nechamkin
------------------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS II, LTD
By: Octagon Credit Investors LLC, as sub
investment manager
as a Lender
By: /s/ Michael B. Nechamkin
------------------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
VAN KAMPEN PRIME RATE INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Howard Tiffer
------------------------------------
Name: Howard Tiffer
Title: Managing Director
VAN KAMPEN CLO I, LIMITED
By: Van Kampen Investment Advisory Corp.
as collateral manager
By: /s/ Howard Tiffer
------------------------------------
Name: Howard Tiffer
Title: Managing Director
VAN KAMPEN CLO II, LIMITED
By: Van Kampen Investment Advisory Corp.
as collateral manager
By: /s/ Howard Tiffer
------------------------------------
Name: Howard Tiffer
Title: Managing Director
VAN KAMPEN CLO I, LIMITED
By: Van Kampen Investment Advisory Corp.
as collateral manager
By: /s/ Howard Tiffer
------------------------------------
Name: Howard Tiffer
Title: Managing Director
SIMSBURY CLO, LIMITED
By: David L. Babson and Company
Incorporated, under delegated authority
from Massachusetts Mutual Life Insurance
Company, its collateral manager
By: /s/ Lisa Yuerg
------------------------------------
Name: Lisa Yuerg
Title: Managing Director with David
L. Babson and Company Incorporated
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: David L. Babson and Company
Incorporated, under delegated authority
from Massachusetts Mutual Life Insurance
Company, its collateral manager
By: /s/ Lisa Yuerg
------------------------------------
Name: Lisa Yuerg
Title: Managing Director with David
L. Babson and Company Incorporated
Maplewood CDO, Limited
By: David L. Babson and Company
Incorporated, under delegated authority
from Massachusetts Mutual Life Insurance
Company, its collateral manager
By: /s/ Lisa Yuerg
------------------------------------
Name: Lisa Yuerg
Title: Managing Director with David
L. Babson and Company Incorporated
NATIONAL BANK OF CANADA,
As a Lender
By: /s/ Jay Stein
------------------------------------
Name: Jay Stein
Title: V.P.
By: /s/ Jean Page
------------------------------------
Name: Jean Page
Title: V.P.
NATEXIS BANQUES POPULAIRES,
as a Lender
By: /s/ Frank H. Madden, Jr
------------------------------------
Name: Frank H. Madden, Jr.
Title: Vice President and Group
Manager
By: /s/ Harris Frommer
------------------------------------
Name: Harris Frommer
Title: Assistant Vice President
THE CITIGROUP/EQUIPMENT
FINANCING, INC.,
as a Lender
By: /s/ Katie J. Saunders
------------------------------------
Name: Katie J. Saunders
Title: Senior Credit Analyst
SEQUILS-Cumberland I. Ltd.,
as a Lender
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Dan Hattori
------------------------------------
Name: Dan Hattori
Title: Vice President
LIBERTY-STEIN ROE ADVISOR
FLOATING RATE ADVANTAGE FUND, by
Stein Roe Farnham Incorporated As
Advisor as a Lender
By: /s/ James R. Fellows
------------------------------------
Name: James R. Fellows
Title: Sr. Vice President &
Portfolio Manager
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
as a Lender
By: /s/ James R. Fellows
------------------------------------
Name: James R. Fellows
Title: Senior Vice President
Stein Roe & Farnham
Incorporated,As Advisor to
the Stein Roe Floating Rate
Limited Liability Company
Prometheus Investment Funding No. 1 Ltd,
By: CPF Asset Advisory, L.L.C. as
Investment Manager
as a Lender
By: /s/ Irv Roa
------------------------------------
Name: Irv Roa
Title: Associate Director
By: /s/ Vicky S. Soo
------------------------------------
Name: Vicky S. Soo
Title: Associate Director
Metropolitan Property and Casualty
Insurance Company,
as a Lender
By: /s/ James R. Dingler
------------------------------------
Name: James R. Dingler
Title: Director
General Electric Capital Corporation,
as a Lender
By: /s/ R.T. Sturgeon
------------------------------------
Name: R.T. Sturgeon
Title: Manager-Operations
Emerald Orchard Limited,
as a Lender
By: /s/ Dana Schwalle
------------------------------------
Name: Dana Schwalle
Title: Attorney in fact
Toronto Dominion (New York), Inc.,
as a Lender
By: /s/ Dana Schwalle
------------------------------------
Name: Dana Schwalle
Title: Vice President
Bank One, NA,
as a Lender
By: /s/ Christopher Caviani
------------------------------------
Name: Christopher Caviani
Title: Director
Credit Lyonnais New York Branch,
as a Lender
By: /s/ Attila Koc
------------------------------------
Name: Attila Koc
Title: Senior Vice President
Monument Capital Ltd., as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Nantha Suppiah
------------------------------------
Name: Nantha Suppiah
Title: Assistant Vice President
FORTIS BANK (NEDERLAND) N.V.,
as a Lender
By: /s/ P.R.G. Zaman
------------------------------------
Name: P.R.G> Zaman
Title:
By: /s/ B.M. Kool
------------------------------------
Name: B.M. Kool
Title:
Sequlls - Centurion V, Ltd.
American Express Asset Management Group,
Inc., as Collateral Manager,
as a Lender
By: /s/ Steven B. Staver
------------------------------------
Name: Steven B. Staver
Title: Managing Director
Centurion CDO II, Ltd.
By:American Express Asset Management
Group, Inc., as Collateral Manager,
as a Lender
By: /s/ Steven B. Staver
------------------------------------
Name: Steven B. Staver
Title: Managing Director
GLENEAGLES TRADING LLC,
as a Lender
By: /s/ Ann E. Morris
------------------------------------
Name: Ann E. Morris
Title: Assistant Vice President
MUIRFIELD TRADING LLC,
as a Lender
By: /s/ Ann E. Morris
------------------------------------
Name: Ann E. Morris
Title: Assistant Vice President
WINGED FOOT FUNDING TRUST,
as a Lender
By: /s/ Ann E. Morris
------------------------------------
Name: Ann E. Morris
Title: Authorized Agent
PPM SPYGLASS FUNDING TRUST,
as a Lender
By: /s/ Ann E. Morris
------------------------------------
Name: Ann E. Morris
Title: Authorized Agent
OLYMPIC FUNDING TRUST, SERIES 1999-1,
as a Lender
By: /s/ Ann E. Morris
------------------------------------
Name: Ann E. Morris
Title: Authorized Agent
SCUDDER FLOATING RATE FUND,
as a Lender
By: /s/ Kelly D. Babson
------------------------------------
Name: Kelly D. Babson
Title: Managing Director
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Albert W. Kelley
------------------------------------
Name: Albert W. Kelley
Title: Vice President
National City Bank,
as a Lender
By: /s/ Mark J. Ringel
------------------------------------
Name: Mark J. Ringel
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
By: /s/ Joseph P. Devoe
------------------------------------
Name: Joseph P. Devoe
Title: Vice President & Manager
BANK OF MONTREAL,
as a Lender
By: /s/ Barry Campbell
------------------------------------
Name: Barry Campbell
Title: Managing Director
PILGRIM CLO 1999-1 Ltd.
By: ING Pilgrim Investments LLC, as its
investment manager,
SEQUILS PILGRIM-1 Ltd.
By: ING Pilgrim Investments LLC, as its
investment manager
ML CLO XV PILGRIM AMERICA (CAYMAN) Ltd.
By: ING Pilgrim Investments LLC, as its
investment manager
PILGRIM PRIME RATE TRUST
By: ING Pilgrim Investments LLC, as its
investment manager
PILGRIM SENIOR INCOME FUND
By: ING Pilgrim Investments LLC, as its
investment manager
By: /s/ Brian S. Horton
------------------------------------
Name: Brian S. Horton
Title: Vice President
BLUE SQUARE FUNDING SERIES 3,
By: Bankers Trust Company, as Trustee
as a Lender
By: /s/ Susan Anderson
------------------------------------
Name: Susan Anderson
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as the
Syndication Agent and as a Lender
By: /s/ Paul J. Corona
------------------------------------
Name: Paul J. Corona
Title: Vice President
By: /s/ William S. Lutkins
------------------------------------
Name: William S. Lutkins
Title: Vice President
THE BANK OF NOVA SCOTIA, as the
Administrative Agent and as a Lender
By: /s/ William J. Brown
------------------------------------
Name: William J. Brown
Title: Vice President
ACKNOWLEDGMENT AND CONSENT
Each Obligor listed below hereby acknowledges that it has reviewed the foregoing
Waiver and Amendment No. 3 to Credit Agreement (the "Amendment") and hereby
consents to the execution, delivery and performance thereof by the Borrowers.
Each Obligor hereby confirms its obligation under the Subsidiary Guaranty and
each other Loan Document to which it is a party and agrees that, after giving
effect to the Amendment, neither the modification of the Credit Agreement nor
the modification of any other Loan Document effected pursuant to the Amendment,
nor the execution, delivery, performance or effectiveness of the Amendment or
any other Loan Document, nor the borrowing by the U.S. Borrower of the Term C
Loans or any use of the proceeds thereof impairs the validity or effectiveness
of the Subsidiary Guaranty or impairs the validity, effectiveness or priority of
the Liens granted pursuant to any other Loan Document to which such Obligor is a
party or by which it is otherwise bound. Each Obligor hereby further agrees that
(a) the Subsidiary Guaranty continues unimpaired to guaranty repayment of all
Obligations, including, without limitation, the Term C Loans, whether heretofore
or hereafter incurred, and (b) the Liens created pursuant to the Loan Documents
continue unimpaired with the same enforceability and priority to secure
repayment of all Obligations, including, without limitation, the Term C Loans,
whether heretofore or hereafter incurred. Each Obligor represents and warrants
that neither the modification of the Credit Agreement, nor the modification of
any other Loan Document effected pursuant to the Amendment, nor the execution,
delivery, performance or effectiveness of the Amendment nor any other Loan
Document nor the borrowing by the U.S. Borrower of the Term C Loans or any use
of the proceeds thereof requires that any new filings be made or other action be
taken to perfect or to maintain the perfection of such Liens. Under the
foregoing circumstances, the position of the Lenders with respect to such Liens,
the collateral in which a security interest was granted pursuant to the Loan
Documents, and the ability of the Administrative Agent to enforce the provisions
of the Subsidiary Guaranty and to realize upon such Liens pursuant to the terms
of the Loan Documents, have not been adversely affected in any material respect
by the modification of the Credit Agreement, the modification of any other Loan
Document effected pursuant to the Amendment, the execution, delivery,
performance or effectiveness of the Amendment or the borrowing by the U.S.
Borrower of the Term C Loans or any use of the proceeds hereof.
AUSTIN & NORTHWESTERN RAILROAD
COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
BOSTON CENTRAL FREIGHT
RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
CASCADE & COLUMBIA RIVER RAILROAD
COMPANY
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
CENTRAL OREGON & PACIFIC
RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
CENTRAL RAILROAD COMPANY OF INDIANA
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
CENTRAL RAILROAD COMPANY OF INDIANAPOLIS
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
CONNECTICUT SOUTHERN RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
DALLAS, GARLAND & NORTHEASTERN RAILROAD,
INC. (TX)
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
DALLAS, GARLAND & NORTHEASTERN RAILROAD,
INC. (DE)
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
DAKOTA RAIL, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
DELAWARE VALLEY RAILWAY
COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
FLORIDA RAIL LINES, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
GEORGIA SOUTHWESTERN RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
HURON & EASTERN RAILWAY COMPANY
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
INDIANA & OHIO CENTRAL RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
INDIANA & OHIO RAIL CORP.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
INDIANA & OHIO RAILWAY COMPANY
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
INDIANA SOUTHERN RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
MARKSMAN CORP.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
MID-MICHIGAN RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
MISSOURI & NORTHERN ARKANSAS
RAILROAD COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
NEW ENGLAND CENTRAL RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
NEW ORLEANS LOWER COAST
RAILROAD, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
NORTH CAROLINA & VIRGINIA RAILROAD
COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
OTTER TAIL VALLEY RAILROAD
COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
PLAINVIEW TERMINAL COMPANY
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
PRAIRIE HOLDING CORPORATION
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAILAMERICA AUSTRALIA, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAILAMERICA EQUIPMENT CORP.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAILAMERICA INTERMODAL
SERVICES, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAIL AMERICA TRANSPORTATION CORP.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAIL OPERATING SUPPORT GROUP, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAILTEX ACQUISITION CORP.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAILTEX DISTRIBUTION SERVICES, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAILTEX, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAILTEX INTERNATIONAL HOLDINGS, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
RAILTEX LOGISTICS, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
SAGINAW VALLEY RAILWAY
COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
SAN DIEGO & IMPERIAL VALLEY RAILROAD
COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
SOUTH CAROLINA CENTRAL RAILROAD
COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
TOLEDO, PEORIA & WESTERN RAILROAD
CORPORATION (NY)
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
TOLEDO, PEORIA & WESTERN RAILROAD
CORPORATION (NJ)
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
VENTURA COUNTY RAILROAD COMPANY
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
WEST TEXAS & LUBBOCK RAILROAD
COMPANY, INC.
By: /s/ Julie S. Herbort
------------------------------------
Name: Julie Herbort
Title: Vice President
Dates Referenced Herein and Documents Incorporated by Reference
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