Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Railamerica, Inc. Form 10-K 12-31-98 78 372K
2: EX-4.2 Certificate of Designation 10 43K
3: EX-10.57 First Amendment to Loan Agreement 24 89K
4: EX-27 Financail Data Schedule 1 6K
EX-10.57 — First Amendment to Loan Agreement
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EXHIBIT 10.57
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT is made and entered into as of
the 16th day of June, 1998, by and among RAILAMERICA, INC., a Delaware
corporation, KALYN/SIEBERT INCORPORATED, a Texas corporation, RAILAMERICA
INTERMODAL SERVICES, INC., a Delaware corporation, RAILAMERICA CARRIERS INC., a
corporation organized under the laws of the Province of Ontario, STEEL CITY
CARRIERS INC., a corporation organized under the laws of the Province of
Ontario, SAGINAW VALLEY RAILWAY COMPANY, INC., a Delaware corporation, HURON AND
EASTERN RAILWAY COMPANY, INC., a Michigan corporation, WEST TEXAS AND LUBBOCK
RAILROAD COMPANY, INC., a Texas corporation, PLAINVIEW TERMINAL COMPANY, a Texas
corporation, CASCADE AND COLUMBIA RIVER RAILROAD COMPANY, a Delaware
corporation, OTTER TAIL VALLEY RAILROAD COMPANY, INC., a Minnesota corporation,
MINNESOTA NORTHERN RAILROAD, INC., a Delaware corporation, and DELAWARE VALLEY
RAILWAY COMPANY, INC., a Delaware corporation (collectively, the "Initial
Borrowers"), and ST. CROIX VALLEY RAILROAD COMPANY, a Delaware corporation ("St.
Croix"; collectively with Initial Borrowers, the "Borrower" or "Borrowers"),
NATIONAL BANK OF CANADA, a Canadian Chartered Bank, as agent (the "Agent"), and
NATIONAL BANK OF CANADA, a Canadian Chartered Bank ("NBC"), and COMERICA BANK, a
Michigan Banking Corporation ("Comerica"; Comerica and NBC being referred to
herein collectively as the "Initial Lenders"), and SOUTHTRUST BANK, NATIONAL
ASSOCIATION, a national banking association ("SouthTrust"; collectively with the
Initial Lenders, the "Lender" or "Lenders").
W I T N E S S E T H:
WHEREAS, the Initial Borrowers, the Agent and the Initial Lenders
previously entered into that certain Loan Agreement dated as of May 23, 1997
(the "Loan Agreement");
WHEREAS, SouthTrust and Agent have executed a Lender Joinder Agreement
dated as of even date herewith, pursuant to which SouthTrust has become an
Additional Lender under the Loan Agreement;
WHEREAS, St. Croix and Agent have executed a Borrower Joinder Agreement
dated as of even date herewith, pursuant to which St. Croix has become an
Additional Borrower under the Loan Agreement;
WHEREAS, the Borrowers have requested, and the Lenders have agreed, to
modify the Initial Loans and make an Additional Loan in the amount of Fifteen
Million Dollars ($15,000,000.00), such that the Loans, as modified and
increased, shall be in the aggregate amount of Fifty-five Million Dollars
($55,000,000.00), subject to the terms and conditions contained herein and in
the Loan Agreement; and
WHEREAS, the parties hereto wish to amend the Loan Agreement as
provided herein.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the loans or extensions of credit
heretofore now or hereafter made or to be made for the benefit of the Borrower
by the Lender, the parties do hereby agree as follows:
1. The Borrowers and the Lenders agree that the recitals set forth above
are true, correct, and complete, and are hereby incorporated herein.
2. All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement.
3. Subparagraph (f) of Section 1.2 of the Loan Agreement is hereby amended
and restated so that, from and after the date hereof, it shall read in
its entirety as follows:
(f) "ADVANCE": A disbursement by the Lenders of a portion of the
Loan proceeds to be utilized by the Borrowers for the purposes
set forth in Section 2.1 of this Agreement.
4. Subparagraph (n) of Section 1.2 of the Loan Agreement is hereby amended
and restated so that, from and after the date hereof, it shall read in
its entirety as follows:
(n) "CHANGE DATE": June 16, 1999, the date upon which the
outstanding principal balances of the Loans shall convert from
revolving lines of credit to term loans, as more fully set
forth in the Notes.
5. Subparagraph (s) of Section 1.2 of the Loan Agreement is hereby amended
and restated so that, from and after the date hereof, it shall read in
its entirety as follows:
(s) "COMERICA NOTE": A Modification Master Revolving/Term
Promissory Note in the amount of Fifteen Million and 00/100
Dollars ($15,000,000.00) from Borrowers to Comerica dated as
of June 16, 1998, and any modifications, amendments or
renewals thereof, evidencing a portion of the Loans.
6. Subparagraph (aa) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(aa) "FRANCHISES": All franchises, sanctions, rights, licenses,
privileges and operating agreements or authorities, third
party agreements and interchange agreements, including without
limitation agreement(s) (direct and indirect) between
Borrowers or any of them and the State of Michigan Department
of Transportation, to operate over 206 miles of track, or
thereabouts, agreement(s) (direct and indirect) between
Borrowers or any of them and the State of Texas Department of
Transportation, to operate over 131 miles of track, or
thereabouts, agreement(s) (direct and
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indirect) between Borrowers or any of them and the State of
Washington Department of Transportation, to operate over 131
miles of track, or thereabouts, agreement(s) (direct and
indirect) between Borrowers or any of them and the State of
Minnesota Department of Transportation, to operate over 279
miles of tract, or thereabouts, and agreement(s) (direct and
indirect) between Borrowers or any of them and the State of
Pennsylvania Department of Transportation, to operate over 23
miles of track, or thereabouts.
7. Subparagraph (dd) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(dd) "GETTYSBURG MORTGAGE DOCUMENTS": Collectively, Mortgage Deed
and Security Agreements and Assignments of Rents, Leases and
Deposits, as modified by Mortgage Modification Agreements, and
as the same may be further amended from time to time, from
Delaware to Agent, which partially secure the Notes to the
extent of $1,250,000.00, and are valid first liens on the
Gettysburg Real Property and the personal property associated
therewith, together with UCC-1 Financing Statements and other
documents associated therewith.
8. Subparagraph (ww) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(ww) "MATURITY DATE": June 16, 2001, upon which date the entire
principal balance and accrued interest and all other
applicable charges under the Loans shall become due and
payable in full.
9. Subparagraph (xx) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(xx) "MICHIGAN EPA AUDIT": Copies of all existing Phase I and, if
applicable, Phase II environmental audits and assessments,
certified to Agent, and other reports and evidence of any
remediation which has been effectuated to date with respect to
the Michigan Real Property and the Huron and Eastern Real
Property, together with any new environmental audits of the
Michigan Real Property and the Huron and Eastern Real Property
required by Agent, the results of which must be satisfactory
to the Majority Lenders in their sole and absolute discretion.
10. Subparagraph (yy) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(yy) "MICHIGAN MORTGAGE DOCUMENTS": Collectively, (A) (Railroad)
Mortgage and Security Agreements and Assignments of Rents,
Leases and Deposits, as modified by Mortgage Modification
Agreements and Receipts for Future Advance, Mortgage
Modification and Spreader Agreements, and as the same may be
further
3
amended from time to time, from Saginaw and Huron, as
applicable, to Agent, which secure the Notes to the extent of
$13,000,000.00 and are valid first liens on the Michigan Real
Property and the personal property associated therewith,
together with UCC-1 Financing Statements and other documents
associated therewith, and (B) a Mortgage and Security
Agreement, as the same may be amended from time to time, from
Huron to Agent, which secures the Notes to the extent of
$440,000.00 and is a valid first lien on the Huron and Eastern
Real Property and the personal property associated therewith,
together with UCC-1 Financing Statements and other documents
associated therewith.
11. Subparagraph (zz) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(zz) "MICHIGAN REAL PROPERTY": Collectively, certain real property
lying and being situate in Lapeer County, Michigan, Saginaw
County, Michigan, and Tuscola County, Michigan owned by
Saginaw, and, real property lying and being situate in Saginaw
County, Michigan, Tuscola County, Michigan, Huron County,
Michigan and Sanilac County, Michigan owned by Huron, more
particularly described on Composite Exhibit "F" appended
hereto and made a part hereof.
12. Subparagraph (ccc) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(ccc) "MINNESOTA MORTGAGE DOCUMENTS": Collectively, a Mortgage,
Security Agreement and Fixture Financing Statement and an
Assignment of Rents, Leases and Deposits from Minnesota to
Comerica, as assigned by Comerica to Agent, and as modified by
an Amendment No. 1 to Mortgage, Security Agreement and Fixture
Financing Statement and an Amendment No. 1 to Assignment of
Rents, Leases and Deposits, as further modified by an
Amendment No. 2 to Mortgage, Security Agreement and Fixture
Financing Statement and an Amendment No. 2 to Assignment of
Rents, Leases and Deposits, and as the same may be further
amended from time to time, which partially secure the Notes to
the extent of $1,500,000.00, and are valid first liens on the
Minnesota Real Property and the personal property associated
therewith, together with UCC-1 Financing Statements, UCC-2
Fixture Financing Statements, UCC-3 Assignment and Amendment
Statements and other documents associated therewith.
13. Subparagraph (eee) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(eee) "MINNESOTA REAL PROPERTY": Collectively, certain real property
lying and being situate in Red Lake County, Polk County,
Norman County, Pennington County, Marshall County, Roseau
County, Pine County, Chisago County, and Kanabec
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County, Minnesota, as more particularly described on Exhibit
"G" appended hereto and made a part hereof.
14. Subparagraph (fff) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(fff) "MORTGAGE DOCUMENTS": Collectively, the Gettysburg Mortgage
Documents, the Michigan Mortgage Documents, the Minnesota
Mortgage Documents, the Ontario Mortgage Documents, the Texas
Deed of Trust Documents, the Washington Deed of Trust
Documents and the West Texas and Lubbock Deed of Trust
Documents.
15. Subparagraph (ggg) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(ggg) "NBC NOTE": A Modification Master Revolving/Term Promissory
Note in the amount of Twenty-five Million and 00/100 Dollars
($25,000,000.00) from Borrowers to NBC dated as of June 16,
1998, and any modifications, amendments or renewals thereof,
evidencing a portion of the Loans.
16. Subparagraph (hhh) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(hhh) "NOTE" or "NOTES": Collectively the Comerica Note, the NBC
Note, the SouthTrust Note and the Additional Notes, which
Notes are cross-defaulted and cross-collateralized.
17. Subparagraph (qqq) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(qqq) "PURCHASE AGREEMENTS": Collectively, the Cascade Purchase
Agreement, the Minnesota Purchase Agreement, the CSX Purchase
Agreement, the St. Croix Purchase Agreement and the Delaware
Valley Purchase Agreement.
18. Subparagraph (sss) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(sss) "RAILROAD TRACKAGE APPRAISAL": Collectively, (i) that certain
Railroad Trackage appraisal prepared by Rail Associated
Services, Inc. dated December 27, 1993, as updated by Main
Line Management Services, Inc., by two (2) updates, both
updates dated August 30, 1996, (ii) that certain Development
of Net Liquidation Value Appraisal prepared by Main Line
Management Services, Inc., dated October 17, 1995, as updated
by Main Line Management Services, Inc., by virtue of update
dated August 16, 1996, (iii) that certain Fair Market Value of
Real Property prepared by Main Line Management Services, Inc.,
dated August 13,
5
1996, (iv) that certain fair market value appraisal of the
railroad trackage owned by Minnesota and prepared by Main Line
Management Services, Inc., dated December 12, 1996, (v) that
certain Development of Net Liquidation Value Appraisal
prepared by Main Line Management Services, Inc., dated
December 14, 1995, (vi) that certain Railroad Trackage
Appraisal prepared by Main Line Management Services, Inc.
dated March 20, 1998 (updating a Railroad Trackage Appraisal
prepared by Main Line Management Services, Inc. dated
September, 1995), and (vii) that certain Evaluation Study of
the North Branch and Mora Branch (railroad trackage appraisal)
prepared by Main Line Management Services, Inc. dated
September 8, 1997; provided, however, that Majority Lenders
reserve the right to require Borrowers to provide Agent with
updated appraisals of the same at any time during the term of
the Loans (provided, however, that unless an Event of Default
shall have occurred and be continuing, that said appraisals
shall be limited to one (1) appraisal per year), said
appraisals to be performed at Borrowers' sole cost and
expense.
19. Subparagraph (uuu) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(uuu) "REAL ESTATE APPRAISALS". Satisfactory fair market value
appraisals of each of the Texas Real Property, the Michigan
Real Property, the Huron and Eastern Real Property, the
Minnesota Real Property, the Ontario Real Property, the
Washington Real Property, and the West Texas and Lubbock Real
Property.
20. Subparagraph (dddd) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(dddd) "TEXAS DEED OF TRUST DOCUMENTS": A Deed of Trust, Assignment
of Leases and Rents and Security Agreement, as modified by a
Deed of Trust, Assignment of Leases and Rents and Security
Agreement Modification Agreement, and as the same may be
further amended from time to time, from Kalyn to Agent, which
secures the Notes to the extent of $2,045,000.00, which is a
valid first lien on the Texas Real Property and the personal
property associated therewith, together with UCC-1 Financing
Statements and other documents associated therewith.
21. Subparagraph (hhhh) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(hhhh) "WASHINGTON DEED OF TRUST DOCUMENTS": Collectively a Deed of
Trust Agreement and an Assignment of Rents, Leases and
Deposits from Cascade to Agent, as modified by a Receipt for
Future Advance and Deed of Trust Modification Agreement, and
as the same may be further amended from time to time, which
secure the Notes to the extent of $12,000,000.00 and are valid
first liens on the Washington Real Property and the personal
property associated
6
therewith, together with UCC-1 Financing Statements and other
documents associated therewith.
22. Subparagraph (kkkk) of Section 1.2 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(kkkk) "WEST TEXAS AND LUBBOCK DEED OF TRUST DOCUMENTS": A Deed of
Trust, Assignments of Leases and Rents and Security Agreement,
as modified by a Receipt for Future Advance, Deed of Trust,
Assignment of Leases and Rents and Security Agreement
Modification Agreement, and as the same may be further amended
from time to time, from West Texas to Agent which secure the
Notes to the extent of $7,250,000.00 and are valid first liens
on the West Texas and Lubbock Real Property and the personal
property associated therewith, together with UCC-1 Financing
Statements and other documents associated therewith.
23. The following subparagraphs are hereby added to Section 1.2 of the Loan
Agreement effective from and after the date hereof:
(mmmm) "CSX PURCHASE AGREEMENT": That certain Purchase and
Sale Agreement dated April 13, 1998, between Saginaw
and CSX Transportation, Inc., a Virginia corporation
(as the same may be amended from time to time).
(nnnn) "DELAWARE VALLEY PURCHASE AGREEMENT": Collectively,
that certain Option to Purchase Agreement between
Delaware and James Cornell dated November 15, 1996,
and that certain Indemnification Agreement between
Gettysburg Railroad Company and Sloan Cornell dated
November 15, 1996 (as the same may be amended from
time to time).
(oooo) "ST. CROIX PURCHASE AGREEMENT": That certain
Agreement for Sale of Certain Assets, Rights and
Obligations of The Burlington Northern and Santa Fe
Railway Company to St. Croix Valley Railroad Company
dated as of August 22, 1997 (as the same may be
amended from time to time).
(pppp) "HURON AND EASTERN REAL PROPERTY": Certain real
property lying and being situate in Tuscola County,
Michigan owned by Huron, more particularly described
on Exhibit "R" appended hereto and made a part
hereof.
(qqqq) "SOUTHTRUST NOTE": A Master Revolving/Term Promissory
Note in the amount of Fifteen Million and 00/100
Dollars ($15,000,000.00) from Borrowers to SouthTrust
dated as of June 16, 1998, and any modifications,
amendments or renewals thereof, evidencing a portion
of the Loans.
7
(rrrr) "LOCOMOTIVE APPRAISAL": That certain appraisal of
locomotives prepared by Norman W. Seip & Associates
dated May 12, 1998.
24. Exhibit "F" of the Loan Agreement is hereby amended to (a) add the real
property described on Exhibit "F-1" attached hereto and made a part
hereof, and (b) delete the real property described on Exhibit "F-2"
attached hereto and made a part hereof, effective from and after the
date hereof.
25. Exhibit "G" of the Loan Agreement is hereby amended to add the real
property easement described on Exhibit "G" attached hereto and made a
part hereof, effective from and after the date hereof.
26. Exhibit "I" of the Loan Agreement is hereby amended and restated so
that, from and after the date hereof, it shall read in its entirety as
provided on Exhibit "I" attached hereto and made a part hereof.
27. Composite Exhibit "J" of the Loan Agreement is hereby amended to add
the Railroad Trackage described on Composite Exhibit "J" attached
hereto and made a part hereof, effective from and after the date
hereof.
28. Exhibit "R" attached hereto and made a part hereof is hereby added to
the Loan Agreement as Exhibit "R", effective from and after the date
hereof:
29. Section 2.1 of the Loan Agreement is hereby amended and restated so
that, from and after the date hereof, it shall read in its entirety as
follows:
2.1 Provided there does not exist an Event of Default, and no
event with which notice or lapse of time or both would become
such an Event of Default, and subject to the terms and
provisions of this Agreement, Lenders will under the Notes,
lend or advance for the account of Borrowers from time to
time, and, Borrowers may borrow, repay and re-borrow (provided
that unless Borrowers intend to pay and satisfy the Loans in
full, Borrowers shall not reduce the outstanding principal
balance under any of the Notes to a sum of less than
$1,000.00) such amounts as may be required for the purpose of
(a) refinancing an existing Twenty-Five Million and 00/100
Dollar ($25,000,000.00) line of credit/term loan facility
currently outstanding and due and owing by certain of the
Borrowers to NBC, (b) refinancing an existing Fifteen Million
and 00/100 Dollar ($15,000,000.00) line of credit/term loan
facility currently outstanding and due and owing by certain of
the Borrowers to Comerica, (c) supporting short term working
capital requirements of the Borrowers, and, (d) providing for
the financing of future acquisitions by one or more of the
Borrowers or by an entity owned by or affiliated with one or
more of the Borrowers (hereinafter referred to as an
"Affiliate") of transportation related businesses, said
acquisitions to be subject to review by Lenders, and, in the
case of acquisitions requiring Acquisition
8
Advances (as hereinafter defined) in excess of One Million and
00/100 Dollars ($1,000,000.00) to be subject to the consent of
the Majority Lenders, which consent shall not be unreasonably
withheld; provided further that the assets acquired pursuant
to an acquisition financed by Lenders shall be subject to a
negative pledge, or in the event the pro-forma asset ratio
coverage of the Borrowers immediately after the time of the
Acquisition Advance does not meet the required Minimum Asset
Ratio of not less than 1.4 to 1, pledged in favor of Agent as
security for the Loans, not exceeding in the aggregate an
amount equal to (i) the Eligible Receivables, less such
reserves as the Majority Lenders, in their reasonable
discretion elect to establish, provided further that a
receivable may be devalued in such amount as shall be
determined by the Majority Lenders in their reasonable
discretion due to "Dilution" which is defined as and is the
result of non-cash credits posted against the receivable which
results in payment or other satisfaction of all or any portion
of the receivable for reasons other than full payment of the
receivable in cash, together with an amount equal to (ii) the
Eligible Inventory, together with an amount equal to (iii) the
appraised aggregate fair market value of the Real Property as
determined by (A) that certain Real Property "Market Value"
Appraisal dated May 9, 1994, as updated by appraisal update
dated August 19, 1996, both the Appraisal and the update
prepared by M.B. Valuation Services, Inc. in connection with
the Texas Real Property, (B) that certain Appraisal of
Corridors, Land and Buildings, HURON AND EASTERN RAILWAY
COMPANY, INC., SAGINAW VALLEY RAILWAY COMPANY, INC., State of
Michigan, dated February 28, 1994 prepared by Oetzel Hanton
Williams in connection with the Michigan Real Property, said
appraisals updated by two (2) appraisal updates prepared by
Main Line Management Services, Inc., both updates dated August
30, 1996, (C) that certain Appraisal of Commercial Property
located at 710 Second Line West, Sault Ste. Marie, Ontario,
prepared by Area Real Estate Appraisals, Inc. dated August
1994 in connection with the Ontario Real Property, (D) that
certain Development of Net Liquidation Value Appraisal
prepared by Main Line Management Services, Inc., dated October
17, 1995, as updated by update appraisal prepared by Main Line
Management Services, Inc., dated August 16, 1996, in
connection with the West Texas and Lubbock Real Property, (E)
that certain Fair Market Value of Real Property prepared
by Main Line Management Services, Inc., dated August 13, 1996,
in connection with the Washington Real Property, (F) that
certain Fair Market Value Appraisal of the Minnesota Real
Property and the Minnesota Railroad Trackage prepared by Main
Line Management Services, Inc., dated December 12, 1996, in
connection with the Minnesota Real Property, (G) that certain
Development of Net Liquidation Value Appraisal prepared by
Main Line Management Services, Inc., dated December 14, 1995,
in connection with the Gettysburg Real Property, (H) That
certain Complete Summary Appraisal of RailAmerica, Inc., 101
Enterprise Drive, Vassar, Michigan dated May 11, 1998,
prepared by Johnson Appraisals, in connection with the Huron
and Eastern Real Property, (I) that certain Limited Appraisal
Summary Report, Subject Property: Minnesota
9
Northern Railroad Locomotive Repair Facility, Crookston,
Minnesota dated April 28, 1998, prepared by Agassiz Appraisal
and Consulting Services, Inc., in connection with the
Minnesota Real Property (the "Minnesota Appraisal"), (J) that
certain Railroad Trackage Appraisal prepared by Main Line
Management Services, Inc. dated March 20, 1998 (updating a
Railroad Trackage Appraisal prepared by Main Line Management
Services, Inc. dated September, 1995), in connection with the
Michigan Real Property, (K) that certain Complete Summary
Appraisal of Locomotive Maintenance Facility, 828 Omak Avenue,
Omak, Washington (File #98-11-8786) dated June 1, 1998,
prepared by Pacific Appraisal Associates, P.L.L.C., in
connection with the Washington Real Property (the "Washington
Appraisal"), and (M) Summary Appraisal of an Industrial
Property Located at 6010 Brownfield Highway, Lubbock, Texas
dated April 2, 1998, prepared by Harris Appraisal Company,
Inc., in connection with the West Texas and Lubbock Real
Property (the "West Texas Appraisal") (it being acknowledged
that no valuation attributed to (1) any of the Railroad
Trackage as set forth in the above set forth Real Estate
Appraisals or (2) any of the underlying land as set forth in
the Minnesota Appraisal, the Washington Appraisal or the West
Texas Appraisal, shall be included within the valuation
attributable to the Real Property), which (aggregate) fair
market value as determined by the above set forth appraisals
is subject to adjustment by the Majority Lenders, together
with an amount equal to (iv) the forced liquidation value of
the Machinery and Equipment as determined by (A) a Machinery
and Equipment appraisal prepared by Truck Locators, Inc. dated
January 20, 1995 (related to Steel City), and (B) an appraisal
prepared by Norman W. Seip & Associates dated May 12, 1998
(related to locomotives), which (aggregate) forced liquidation
value is subject to adjustment by the Lenders, together with
an amount equal to (v) the net liquidation value of the
Railroad Trackage as determined by the Railroad Trackage
Appraisal (it being acknowledged that (a) no value attributed
to any of the Real Property as set forth in the Railroad
Trackage Appraisal shall be included in the valuation
attributable to the Railroad Trackage and (b) upon such time
as the Borrowers (or any of them) apply to the Surface
Transportation Board and/or applicable governmental agencies
of the State of Minnesota for abandonment of any railroad
lines operated by St. Croix in the State of Minnesota (it
being further acknowledged that the Borrowers are obligated to
immediately notify the Agent of any proposed abandonment), the
value of the Railroad Trackage owned by St. Croix shall be
reduced by an amount equal to the amount required to be paid
by St. Croix under the terms of the St. Croix Purchase
Agreement upon abandonment), which net liquidation value is
subject to adjustment by the Majority Lenders, all of the
above set forth appraisals and values to be subject to
adjustment by the Majority Lenders, such that the final
amounts of the fair market values, the forced liquidation
values and the net liquidation value, shall be determined by
the Majority Lenders in their reasonable discretion (the
"Borrowing Base"); or, the aggregate sum of Fifty-Five Million
and 00/100 Dollars ($55,000,000.00), whichever is less,
provided that in connection with the Loans, that up to Five
Million Five Hundred Thousand and 00/100 Dollars
($5,500,000.00) of the Loans
10
may be used for the issuance of Letters of Credit, provided,
however, that collateral for the Letters of Credit will be one
hundred (100%) percent reserved and will reduce availability
for direct borrowings under the Loans on a dollar-for-dollar
basis in an amount equal to the face amount of the Letters of
Credit outstanding, and provided further that the outstanding
amount of the Loans shall in no event exceed the maximum sum
of Fifty-Five Million and 00/100 Dollars ($55,000,000.00),
provided further, that at no time shall the Borrowing Base
divided by the total outstanding principal amount of the Loans
(the "Minimum Asset Ratio") be less than 1.4 to 1, and in the
event that the Minimum Asset Ratio is less than 1.4 to 1, then
the outstanding principal balance of the Loans must be reduced
by the amount necessary to achieve a Minimum Asset Ratio of
equal to or greater than 1.4 to 1. The principal payment
necessary to effectuate such reduction shall be due and
payable in full on DEMAND.
Advances will be made based on the most recent "Minimum Asset
Ratio Certificate" submitted by Borrowers to Agent, which must
be submitted by Borrowers to Agent no less than one (1) time
in each month within thirty (30) days of the end of the prior
month evidencing the Minimum Asset Ratio for the immediately
preceding month, provided however, that the Minimum Asset
Ratio Certificate must also be submitted by Borrowers to Agent
each time an Advance or an Acquisition Advance is requested,
reflecting the above borrowing formula. The form of Minimum
Asset Ratio Certificate is attached hereto and made a part
hereof as Exhibit "N".
In connection with any requests for an Acquisition Advance in
an amount in excess of One Million and 00/100 Dollars
($1,000,000.00), said request shall be subject to the approval
of the Majority Lenders, which approval will not be
unreasonably withheld. ADDITIONALLY, ALL ACQUISITIONS IN AN
AMOUNT IN EXCESS OF ONE MILLION AND 00/100 DOLLARS
($1,000,000.00) BY ONE OR MORE OF THE BORROWERS OR BY AN
AFFILIATE OF TRANSPORTATION RELATED BUSINESSES OR ANY OTHER
BUSINESSES MUST BE APPROVED BY THE MAJORITY LENDERS, WHICH
APPROVAL WILL NOT BE UNREASONABLY WITHHELD; PROVIDED, HOWEVER,
THAT ACQUISITIONS IN AN AMOUNT OF TWENTY MILLION AND 00/100
DOLLARS ($20,000,000.00) OR LESS WHICH ARE FUNDED UTILIZING
MONEY RAISED THROUGH PUBLIC OFFERINGS, PRIVATE PLACEMENTS OR
SUBORDINATED DEBT SHALL ONLY REQUIRE NOTIFICATION TO THE
LENDERS, BUT NOT THE APPROVAL OF THE MAJORITY LENDERS, SO LONG
AS NO MONETARY DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS
THEN CONTINUING, AND SUCH ACQUISITION (AND THE FUNDING
THEREFOR) WILL NOT RESULT IN A DEFAULT UNDER ANY FINANCIAL
COVENANTS OR RESULT IN ANY OTHER MONETARY DEFAULT OR EVENT OF
DEFAULT. NOTWITHSTANDING THE FOREGOING, ACQUISITIONS IN AN
AMOUNT IN EXCESS OF TWENTY
11
MILLION DOLLARS ($20,000,000.00) BY ONE OR MORE OF THE
BORROWERS OR BY AN AFFILIATE OF TRANSPORTATION RELATED
BUSINESSES OR ANY OTHER BUSINESSES MUST BE APPROVED BY THE
MAJORITY LENDERS, WHICH APPROVAL WILL NOT BE UNREASONABLY
WITHHELD. In connection with the same, Borrowers shall provide
to Agent at the time of the request for an Acquisition Advance
or at the time Borrowers notify the Lenders or seek approval
from the Lenders in connection with a proposed acquisition by
any of the Borrowers, as applicable, certified copies of the
Contract for Purchase and Sale and all associated
documentation associated with the applicable Borrower's
acquisition of a transportation related business, including,
without limitation, all contracts, breakout of purchase price,
cash flow analysis, projected income from the acquisition,
historical performance of the business being acquired, and all
appraisals and environmental audits related to the property
being acquired by a Borrower or an affiliate of a Borrower.
Based upon Lenders' review of all of the above, the Majority
Lenders may effectuate or not effectuate the Acquisition
Advance or approve or not approve the acquisition, as
applicable, in Lenders' reasonable discretion. Lenders shall
approve or not approve each request for an Acquisition
Advance, or approve or not approve an acquisition, as
applicable, no later than five (5) business days after the
time that Agent has received the last item required to be
reviewed by Lenders in connection with the applied for
Acquisition Advance or approval of an acquisition, as
applicable. Lenders shall approve or not approve each request
for a Collateralized Acquisition Advance no later ten (10)
business days after the time that Agent has received the last
item required to be reviewed by Lenders in connection with the
applied for Collateralized Acquisition Advance. Borrowers
shall additionally provide to Agent copies of all closing
documentation associated with the acquisition and sale at the
time of the closing of said acquisition and shall execute
and/or provide all documentation required by Lenders and their
counsel (including, without limitation, mortgages, deeds of
trust, security agreements, reaffirmations, collateral
assignments, UCC-1 financing statements, UCC-3 statements of
change, lien searches and opinions of Borrowers' counsel), in
order to evidence and perfect Agent's security interest in the
newly acquired assets.
30. It is acknowledged and agreed by the Borrowers and the Lenders that, in
addition to the Loan Closing Fee specified in Subparagraph (a) of
Section 2.2 of the Loan Agreement (which has already been paid), in
connection with the transactions contemplated herein, an additional
Loan Closing Fee shall be due and owing from Borrowers in the amount of
Thirty-Seven Thousand Five Hundred and 00/100 Dollars ($37,500.00),
which shall be paid to Agent, for pro-rata distribution to the Lenders,
upon the closing of the transactions contemplated herein.
12
31. Subparagraph (c) of Section 2.2 of the Loan Agreement is hereby amended
and restated so that, from and after the date hereof, it shall read in
its entirety as follows:
(c) UNUSED LINE FEE: An unused line fee shall be charged in
connection with the Loans, such that the unused portion of the
Loans shall be subject to an annual fee of one-eighth of one
percent (.125%) per annum, to be calculated and payable to
Agent upon a quarterly basis, for pro-rata distribution to the
Lenders.
32. Subparagraph (d) of Section 2.2 of the Loan Agreement is hereby amended
and restated so that, from and after the date hereof, it shall read in
its entirety as follows:
(d) ADMINISTRATIVE FEE - COLLATERALIZED ACQUISITION ADVANCES:
Intentionally deleted.
33. Section 3.3 of the Loan Agreement is hereby amended and restated so
that, from and after the date hereof, it shall read in its entirety as
follows:
3.3 Notwithstanding anything to the contrary set forth above, and
as set forth in Section 2.1 above, in connection with any
requests for an Acquisition Advance in excess of One Million
and 00/100 Dollars ($1,000,000.00), said request shall be
subject to approval by the Majority Lenders, which approval
will not be unreasonably withheld. In connection with the
same, Borrowers shall provide Agent at the time of the request
for an Acquisition Advance certified copies of the Contract
for Purchase and Sale and all associated documentation
associated with the applicable Borrower's acquisition of a
transportation related business, which shall be purchased (in
part) from the proceeds of the Acquisition Advance, including
without limitation, all contracts, breakout of purchase price,
cash flow analysis, projected income from the acquisition and
historical performance of the business being acquired. Based
upon Lenders' review of all of the above, Lenders may
effectuate or not effectuate the Acquisition Advance in
Lenders' reasonable discretion. Lenders shall approve or not
approve each request for an Acquisition Advance no later than
five (5) Business Days, and shall approve or not approve each
request for a Collateralized Acquisition Advance no later than
ten (10) Business Days, after the time that Agent receives the
last item required to be reviewed by Lenders in connection
with the applied for Acquisition Advance or Collateralized
Acquisition Advance, as applicable. Borrowers shall
additionally provide to Agent copies of all closing
documentation associated with the acquisition and sale at the
time of the closing of said acquisition and shall execute all
documentation required by the Majority Lenders, including,
without limitation, execution of a Borrower Joinder Agreement
by an Additional Borrower, in order to evidence and perfect
Agent's and Lenders' security interest in the newly acquired
assets.
13
34. Section 4.1 of the Loan Agreement is hereby amended and restated so
that, from and after the date hereof, it shall read in its entirety as
follows:
4.1 LETTERS OF CREDIT. The Issuing Lender agrees, subject to the
terms and conditions of this Agreement, upon request of the
Borrowers to issue from time to time for the account of the
Borrowers Letters of Credit upon delivery to the Issuing
Lender of an Application and Agreement for Letter of Credit
relating thereto in form and content acceptable to the Issuing
Lender; provided, that (i) the face amount of Letters of
Credit outstanding shall not exceed Five Million Five Hundred
Thousand Dollars ($5,500,000.00) and (ii) no Letter of Credit
shall be issued if, after giving effect thereto, the face
amount of Letters of Credit outstanding plus the outstanding
principal balance of the Loans shall exceed the Borrowing
Base. No Letter of Credit shall have an expiry date (including
all rights of Borrowers or any beneficiary named in such
Letter of Credit to require renewal) or payment date occurring
later than the earlier to occur of (a) (i) in the case of
standby Letters of Credit, one (1) year after the date of its
issuance and (ii) in the case of documentary Letters of
Credit, one hundred twenty (120) days after the date of its
issuance or (b) the Maturity Date.
35. Subparagraph (d) of Section 6.1 of the Loan Agreement is hereby amended
and restated so that, from and after the date hereof, it shall read in
its entirety as follows:
(d) MACHINERY AND EQUIPMENT APPRAISALS. Agent hereby acknowledges
receipt of the Truck Locators, Inc. Appraisal and the
Locomotive Appraisal; provided however, that Lenders reserve
the right to require Borrowers to provide Agent with updated
appraisals of the Machinery and Equipment at any time during
the term of the Loans (provided however, that unless an Event
of Default shall have occurred and be continuing, or unless
Borrowers are refinancing Machinery and Equipment in
accordance with the terms set forth in the Security
Agreements, that said appraisals shall be limited to one (1)
appraisal per year), said appraisals to be performed at
Borrowers' sole cost and expense.
36. Subparagraph (e) of Section 6.1 of the Loan Agreement is hereby amended
and restated so that, from and after the date hereof, it shall read in
its entirety as follows:
(e) REAL ESTATE APPRAISALS. Satisfactory fair market value
appraisals of each of the Texas Real Property, the Michigan
Real Property, the Huron and Eastern Real Property, the
Ontario Real Property, the Gettysburg Real Property, the West
Texas and Lubbock Real Property, the Minnesota Real Property
and the Washington Real Property; provided however, that
Lenders reserve the right to require Borrowers to provide
Agent with updated appraisals of the Real Property, or any
portion thereof, at any time during the term of the Loans
(provided however, that unless an Event of Default shall have
occurred and be continuing, that said
14
appraisals shall be limited to one (1) appraisal per year),
said appraisals to be performed at Borrowers' sole cost and
expense.
37. Article 7 of the Loan Agreement is hereby amended and restated so that,
from and after the date hereof, it shall read in its entirety as
follows:
Article 7
USE OF LOAN PROCEEDS; MARGIN STOCK
The Borrowers desire to obtain extensions of credit of up to
Fifty-five Million and 00/100 Dollars ($55,000,000.00) from the Lenders
to be utilized by the Borrowers for the purposes set forth in Section
2.1 of this Agreement. Borrowers do not own any margin securities and
no portion of any Advance or Acquisition Advance or any of the Loans
will be used for the purpose of reducing or retiring any indebtedness
which was originally incurred by any of the Borrowers to purchase or
carry any margin securities, and neither the making of any and all
loans, Advances and Acquisition Advances nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of
Regulations G, T, U or X of the Board of Governors of the Federal
Reserve System of the United States.
38. Section 10.15 of the Loan Agreement is hereby amended and restated so
that, from and after the date hereof, it shall read in its entirety as
follows:
10.15 In connection with the Locomotive Appraisal, the Railroad
Trackage Appraisal, the Truck Locators, Inc. Appraisal and the
Real Estate Appraisals, Borrowers shall provide to the Agent
updated appraisals of all or any of the same as required by
the Majority Lenders at any time during the term of the Loans
(provided however, that unless an Event of Default shall have
occurred and be continuing, or unless Borrowers are
refinancing Machinery and Equipment in accordance with the
terms set forth in the Security Agreements, that each of the
above set forth appraisals shall be limited to one (1)
re-appraisal per year), said appraisals to be performed at
Borrowers' sole cost and expense. Additionally, Borrowers
shall have the right to obtain updated appraisals of all or
any of the above set forth appraisals for the purpose of
determining the then current value of the assets which are
re-appraised in order to apply for an increased amount of
availability under the Loans. Said re-appraisals shall be
performed at Borrowers' sole cost and expense, and, must be in
form and content acceptable to the Majority Lenders in their
sole discretion. The re-appraisal must additionally be based
upon the same standards as the initial appraisal related to
the property which is being appraised was based (e.g., if the
original appraisal was based on a forced liquidation
valuation, the new appraisal must also be based upon a forced
liquidation valuation; if the original appraisal was based
upon a fair market valuation, the new appraisal must be based
upon a fair market valuation). The determination as to
availability under the Loans, based upon said re-appraisal(s),
shall be determined by the Majority Lenders in
15
their sole discretion; provided further, that it is
acknowledged by Borrowers that in the event that said
re-appraisal indicates a diminution in value of the
reappraised assets that availability under the Loans will be
reduced accordingly.
39. Subparagraph (g) of Section 10.16 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(g) Borrowers shall at all times maintain a Tangible Net Worth
(which is defined as net worth plus subordinated debt, less
goodwill and other intangibles) of not less than Twenty-Two
Million and 00/100 Dollars ($22,000,000.00) plus (a) annual
net income for each fiscal year ended, beginning with the
fiscal year ending December 31, 1997, of Seven Hundred Fifty
Thousand and 00/100 Dollars ($750,000.00), it being
acknowledged that Borrower's annual net income must be in
excess of Seven Hundred Fifty Thousand and 00/100 Dollars
($750,000.00) in each fiscal year, plus (b) seventy-five
percent (75%) of the aggregate net proceeds of any
subordinated debt or equity offerings. Additionally, excluding
Canada, at all times foreign investments, advances, joint
ventures, and other similar investments outside of the United
States cannot exceed fifty percent (50%) of the Borrowers'
consolidated Tangible Net Worth.
40. Subparagraph (l) of Section 10.16 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(l) Borrowers shall maintain a Cash Flow Coverage Ratio (which is
defined as average total senior funded debt over the last
twelve (12) month period divided by earnings before interest,
taxes, depreciation and amortization) calculated on a rolling
twelve (12) month basis of not greater than 4.0 to 1 from the
quarter ending March 31, 1998, and at all times thereafter.
41. The following Section 10.22 is hereby added to the Loan Agreement,
effective from and after the date hereof:
10.22 Borrowers shall take all actions necessary to assure that
Borrowers' computer based systems are able to operate and
effectively process data including dates on and after January
1, 2000. At the request of Agent, Borrowers shall provide
Agent assurance acceptable to Agent of Borrowers' Year 2000
compatibility. Borrowers hereby covenant and agree that all of
Borrowers' information systems, including without limitation
all computer hardware and software, networks, databases, and
all other electronic data storage, retrieval and computation
hardware, software and devices of any kind (collectively, the
"Information Systems"), have been and/or will be updated and
modified to accommodate and conform to the Year 2000 date
change, and are and/or will be in full compliance with any and
all federal, state
16
and local laws, regulations and ordinances relating to the
same, whether now in effect, or hereafter enacted
(collectively, the "Information System Laws").
Borrowers hereby jointly and severally agree, unconditionally,
absolutely, and irrevocably, to indemnify, defend, and hold
harmless Agent and Lenders, their affiliates, successors,
assigns, and their officers, directors, employees, and agents
against and in respect of any loss, liability, cost, injury,
expense, or damage of any and every kind whatsoever (including
without limitation, court costs and attorneys' fees and
expenses) which at any time or from time to time may be
suffered or incurred, directly or indirectly, in connection
with, with respect to, or as a direct or indirect result of
the failure of Borrowers to update or modify their Information
Systems to accommodate and conform to the Year 2000 date
change and/or fully comply with all Information System Laws
including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses, or claims asserted or
arising under the Information System Laws, whether now known
or unknown.
42. The following Section 10.23 is hereby added to the Loan Agreement,
effective from and after the date hereof:
10.23 BORROWERS AND LENDERS ACKNOWLEDGE THAT THE MINNESOTA
DEPARTMENT OF REVENUE MAY ASSERT THE POSITION THAT LIMITATION
OF THE INDEBTEDNESS SECURED BY THE MINNESOTA MORTGAGE
DOCUMENTS REQUIRES THAT THE MINNESOTA MORTGAGE DOCUMENTS BE
RELEASED OR BE DEEMED RELEASED AT SUCH TIME AS THE LENDERS
HAVE RECEIVED ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000.00) IN REPAYMENT OF PRINCIPAL UNDER THE LOANS,
NOTWITHSTANDING ANY OTHER ALLOCATION OF FUNDS AGREED TO BY
BORROWERS AND LENDERS. NOTWITHSTANDING ANY POSITION OF THE
MINNESOTA DEPARTMENT OF REVENUE CONCERNING THIS MATTER,
BORROWERS HEREBY WAIVE ANY AND ALL CLAIMS ANY OF THEM MAY NOW
OR HEREAFTER HAVE TO CHALLENGE THE VALIDITY OF THE MINNESOTA
MORTGAGE DOCUMENTS AS A RESULT OF THE LIMITATION OF THE
INDEBTEDNESS SECURED BY THE MINNESOTA MORTGAGE DOCUMENTS AND
THE REPAYMENT OF ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000.00) OF PRINCIPAL UNDER THE LOANS, AND BORROWERS
FURTHER AGREE THAT THE MINNESOTA MORTGAGE DOCUMENTS SHALL ONLY
BE RELEASED UPON SATISFACTION OF THE TERMS AND CONDITIONS
CONTAINED THEREIN AND IN THE OTHER LOAN DOCUMENTS.
43. Section 14.6 of the Loan Agreement is hereby amended and restated so
that, from and after the date hereof, it shall read in its entirety as
follows:
17
14.6 AGENT'S FEES. Commencing on July 1, 1998, and on the first day
of each quarter thereafter, the Borrowers shall pay to the
Agent such agent fees as are set forth in and in accordance
with the terms and provisions of the Credit Facility Letter
dated February 24, 1998, all of which agent fees shall be
retained by the Agent and not distributed pro-rata to the
Lenders.
44. Subparagraph (b) of Section 17.9 of the Loan Agreement is hereby
amended and restated so that, from and after the date hereof, it shall
read in its entirety as follows:
(b) Initial
Borrowers: RAILAMERICA, INC.
KALYN/SIEBERT INCORPORATED
RAILAMERICA INTERMODAL SERVICES, INC.
RAILAMERICA CARRIERS INC.
STEEL CITY CARRIERS INC.
SAGINAW VALLEY RAILWAY COMPANY, INC.
HURON AND EASTERN RAILWAY COMPANY, INC.
WEST TEXAS AND LUBBOCK RAILROAD COMPANY
PLAINVIEW TERMINAL COMPANY
CASCADE AND COLUMBIA RIVER RAILROAD COMPANY
OTTER TAIL VALLEY RAILROAD COMPANY, INC.
MINNESOTA NORTHERN RAILROAD, INC.
DELAWARE VALLEY RAILWAY COMPANY
301 Yamato Road
Suite 1190
Boca Raton, Florida 33431
Attn: Gary Marino
With a copy to: SCOTT G. WILLIAMS, ESQUIRE
SHUTTS & BOWEN
One Clearlake Centre
Suite 500
250 Australian Avenue South
West Palm Beach, Florida 33402-3555
45. The following Subparagraph (e) is hereby added to Section 17.9 of the
Loan Agreement, effective from and after the date hereof:
(e) Additional
Borrowers: Such addresses as are specified on the
Borrower Joinder Agreements executed by
the Additional Borrowers.
18
46. WAIVER AND RELEASE. AS A MATERIAL INDUCEMENT FOR THE LENDERS TO EXECUTE
THIS AMENDMENT, THE BORROWERS DO HEREBY RELEASE, WAIVE, DISCHARGE,
COVENANT NOT TO SUE, ACQUIT, SATISFY AND FOREVER DISCHARGE THE AGENT
AND LENDERS, THEIR OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS
AND THEIR AFFILIATES AND ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS,
COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS,
CONTROVERSIES, AGREEMENTS, PROMISES AND DEMANDS WHATSOEVER IN LAW OR IN
EQUITY WHICH THE BORROWERS EVER HAD, NOW HAVE, OR WHICH ANY PERSONAL
REPRESENTATIVE, SUCCESSOR, HEIR OR ASSIGN OF THE BORROWERS HEREAFTER
CAN, SHALL OR MAY HAVE AGAINST THE AGENT OR THE LENDERS, THEIR
OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, AND THEIR
AFFILIATES AND ASSIGNS, FOR, UPON OR BY REASON OF ANY MATTER, CAUSE OR
THING WHATSOEVER, THROUGH THE DATE HEREOF. THE BORROWERS FURTHER
EXPRESSLY COVENANT WITH AND WARRANT UNTO THE LENDERS AND THEIR
AFFILIATES AND ASSIGNS, THAT THERE EXIST NO CLAIMS, COUNTERCLAIMS,
DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSET AGAINST THE LENDERS
OR THE OBLIGATION OF THE BORROWERS TO PAY THE LENDERS ALL AMOUNTS OWING
UNDER THE NOTES, THE LOAN AGREEMENT AND ALL ASSOCIATED LOAN DOCUMENTS
AS AND WHEN THE SAME BECOME DUE AND PAYABLE.
47. REAFFIRMATION BY BORROWERS. THE BORROWERS ACKNOWLEDGE AND REAFFIRM THAT
ALL WARRANTIES, REPRESENTATIONS, AFFIRMATIVE COVENANTS AND NEGATIVE
COVENANTS SET FORTH IN THE LOAN AGREEMENT REMAIN IN FULL FORCE AND
EFFECT ON THE DATE HEREOF AS IF MADE ON THE DATE HEREOF.
48. AMENDED AGREEMENT. THIS AGREEMENT AMENDS THE LOAN AGREEMENT, AND THE
BORROWERS ACKNOWLEDGE AND AGREE THAT THE SECURITY INTERESTS, RIGHTS,
DUTIES, AND OBLIGATIONS OF THE BORROWERS AND THE LENDERS CREATED BY THE
LOAN AGREEMENT ARE NOT EXTINGUISHED, BUT ARE REAFFIRMED AND REMAIN IN
FULL FORCE AND EFFECT AS PROVIDED IN THE LOAN AGREEMENT. IN THE EVENT
OF ANY CONFLICT BETWEEN THE TERMS AND PROVISIONS OF THE LOAN AGREEMENT
AND THE TERMS AND PROVISIONS OF THIS AMENDMENT, THE TERMS AND
PROVISIONS OF THIS AMENDMENT SHALL CONTROL AND PREVAIL.
19
INTENTIONALLY LEFT BLANK
20
WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS AND THE BORROWERS HEREBY
MUTUALLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE
TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED OR TO
BE EXECUTED IN CONJUNCTION HEREWITH, UNDER ANY OF THE LOAN DOCUMENTS, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR
ACTIONS OF ANY PARTY. THE BORROWERS ACKNOWLEDGE THAT THIS WAIVER OF JURY TRIAL
IS A MATERIAL INDUCEMENT TO THE AGENT AND THE LENDERS IN ACCEPTING THIS
AGREEMENT, AND, THAT THE AGENT AND THE LENDERS WOULD NOT HAVE ACCEPTED THIS
AGREEMENT WITHOUT THIS JURY TRIAL WAIVER, AND, THAT THE BORROWERS HAVE BEEN
REPRESENTED BY AN ATTORNEY OR HAVE HAD AN OPPORTUNITY TO CONSULT WITH AN
ATTORNEY REGARDING THIS JURY TRIAL WAIVER, AND, UNDERSTAND THE LEGAL EFFECT OF
THIS JURY TRIAL WAIVER.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Loan Agreement as of the day and year first above written.
Witnesses BORROWERS:
RAILAMERICA, INC., a Delaware
corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
KALYN/SIEBERT INCORPORATED, a
Texas corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Vice President
(Corporate Seal)
SIGNATURE PAGE NO. 1 TO FIRST AMENDMENT TO
LOAN AGREEMENT DATED AS OF JUNE 16, 1998
RAILAMERICA INTERMODAL SERVICES, INC., a
Delaware corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
RAILAMERICA CARRIERS INC.,
a corporation organized under the laws
of the Province of Ontario
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Vice President
(Corporate Seal)
STEEL CITY CARRIERS INC., a
corporation organized under the
laws of the Province of Ontario
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Vice President
(Corporate Seal)
SAGINAW VALLEY RAILWAY
COMPANY, INC., a Delaware corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
SIGNATURE PAGE NO. 2 TO FIRST AMENDMENT TO
LOAN AGREEMENT DATED AS OF JUNE 16, 1998
HURON AND EASTERN RAILWAY
COMPANY, INC., a Michigan
corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
WEST TEXAS AND LUBBOCK
RAILROAD COMPANY, INC., a Texas
corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
PLAINVIEW TERMINAL COMPANY, a Texas
corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
CASCADE AND COLUMBIA RIVER
RAILROAD COMPANY, a Delaware
corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
SIGNATURE PAGE NO. 3 TO FIRST AMENDMENT TO
LOAN AGREEMENT DATED AS OF JUNE 16, 1998
OTTER TAIL VALLEY RAILROAD
COMPANY, INC., a Minnesota
corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
MINNESOTA NORTHERN RAILROAD, INC., a
Delaware corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
DELAWARE VALLEY RAILWAY COMPANY, INC., a
Delaware corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
ST. CROIX VALLEY RAILROAD
COMPANY, a Delaware corporation
---------------------------
--------------------------- By: /s/ Donald D. Redfearn
-----------------------------
DONALD D. REDFEARN,
Executive Vice President
(Corporate Seal)
SIGNATURE PAGE NO. 4 TO FIRST AMENDMENT TO
LOAN AGREEMENT DATED AS OF JUNE 16, 1998
Dates Referenced Herein and Documents Incorporated by Reference
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