EXECUTION VERSION
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GENESEE & WYOMING INC.
FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENT
Dated as of June 1, 2005
$125,000,000 Floating Rate
Series 2005 Senior Notes
Due June 1, 2015
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EXECUTION VERSION
GENESEE & WYOMING INC.
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Dated as of
June 1, 2005
To the Purchaser named in
Schedule A hereto
Ladies and Gentlemen:
This First Supplement to Note Purchase Agreement (the "Supplement")
is between GENESEE & WYOMING INC., a Delaware corporation (the "Company"), and
the financial institution named on Schedule A attached hereto (the
"Purchaser").
Reference is hereby made to that certain Note Purchase Agreement
dated as of November 12, 2004 (the "Note Purchase Agreement") between the
Company and the purchasers listed on Schedule A thereto. All capitalized terms
not otherwise defined herein shall have the same meaning as specified in the
Note Purchase Agreement. Reference is further made to Section 2.2 of the Note
Purchase Agreement which requires that, prior to the delivery of any
Additional Notes, the Company and each Additional Purchaser shall execute and
deliver a Supplement.
The Company hereby agrees with the Purchaser as follows:
1. (a) The Company has authorized the issue and sale of $125,000,000
aggregate principal amount of its Floating Rate Series 2005 Senior Notes due
June 1, 2015 (the "Series 2005 Notes"). The Series 2005 Notes, together with
the Series 2004-A Notes initially issued pursuant to the Note Purchase
Agreement and each series of Additional Notes which may from time to time
hereafter be issued pursuant to the provisions of Section 2.2 of the Note
Purchase Agreement, are collectively referred to as the "Notes" (such term
shall also include any such notes issued in substitution therefor pursuant to
Section 13 of the Note Purchase Agreement). The Series 2005 Notes shall be
substantially in the form set out in Exhibit 1 hereto with such changes
therefrom, if any, as may be approved by the Purchaser and the Company.
(b) (i) The Series 2005 Notes shall bear interest (computed on the
basis of a 360-day year and actual days elapsed) on the unpaid principal
thereof from the date of issuance at a floating rate equal to the Adjusted
LIBOR Rate from time to time, payable quarterly on the first day of March,
June, September and December and at maturity, commencing on September 1, 2005,
until such principal sum shall have become due and payable (whether at
maturity, upon notice of prepayment or otherwise) (each such date being
referred to herein as an "Interest Payment Date") and, to the extent permitted
by law, interest (so computed) on any overdue
payment of principal of, or interest on, the Series 2005 Notes shall be
increased by 2.0% per annum above the Adjusted Libor Rate otherwise applicable
until paid.
(ii) The Adjusted LIBOR Rate for the Series 2005 Notes shall be
determined by the Company, and notice thereof shall be given to the Purchaser
of the Series 2005 Notes, within three Business Days after the beginning of
each Interest Period, together with a copy of the relevant screen used for the
determination of LIBOR, a calculation of Adjusted LIBOR Rate for such Interest
Period, the number of days in such Interest Period, the date on which interest
for such Interest Period will be paid and the amount of interest to be paid to
the Purchaser of the Series 2005 Notes on such date and any such determination
made in accordance with the provisions of this Agreement, shall be
presumptively correct absent manifest error.
"Adjusted Libor Rate" for each Interest Period shall be a rate per
annum equal to LIBOR for such Interest Period plus 85 basis points;
provided, however, that upon the lapse of 90 days from the Closing the
Adjusted Libor Rate shall be increased by 52.5 basis points above the
then applying Adjusted Libor Rate and provided further, that upon the
lapse of 270 days from the Closing the Adjusted Libor Rate shall be
increased by 12.5 basis points above the then applying Adjusted Libor
Rate.
"Interest Period" shall mean, as to the Series 2005 Notes, the
period commencing on the date of issuance and ending on the last day of
August, 2005 and thereafter commencing on the first day of September,
December, March and June and ending on the last day of November with
respect to September 1 commencements, February with respect to December 1
commencements, May with respect to March 1 commencements and August with
respect to June 1 commencements; provided that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the
immediately preceding Business Day; and
(ii) no Interest Period shall extend beyond June 1, 2015.
"Libor" shall mean, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred thousandth
of a percentage point) for deposits in U.S. Dollars for a 90 day period
which appears on the Bloomberg Financial Markets Service Page BBAM 1 (or
if such page is not available, the Reuters Screen LIBO Page) as of 11:00
a.m. (London, England time) on the date two Business Days before the
commencement of such Interest Period (or three Business Days prior to the
beginning of the first Interest Period). "Reuters Screen LIBO Page" means
the display designated as the "LIBO" page on the Reuters Monitory Money
Rates Service (or such other page as may replace the LIBO page on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying
British Banker's Association Interest Settlement Rates for U.S. Dollar
deposits).
2. Subject to the terms and conditions hereof and as set forth in the
Note Purchase Agreement and on the basis of the representations and warranties
hereinafter set forth, the Company agrees to issue and sell to the Purchaser,
and the Purchaser agrees to purchase from the Company, Series 2005 Notes in
the principal amount set forth opposite such Purchaser's name on Schedule A
hereto at a price of 100% of the principal amount thereof on the closing date
hereinafter mentioned.
3. The sale and purchase of the Series 2005 Notes to be purchased by
the Purchaser shall occur at the offices of McGuireWoods LLP, ▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M. Chicago time, at a
closing (the "Closing") on June 1, 2005 or on such other Business Day
thereafter on or prior to September 25, 2005 as may be agreed upon by the
Company and the Purchaser. At the Closing, the Company will deliver to the
Purchaser the Series 2005 Notes to be purchased by the Purchaser in the form
of a single Series 2005 Note (or such greater number of Series 2005 Notes in
denominations of at least $100,000 as the Purchaser may request) dated the
date of the Closing and registered in the Purchaser's name (or in the name of
the Purchaser's nominee), against delivery by the Purchaser to the Company or
its order of immediately available funds in the amount of the purchase price
therefor by wire transfer of immediately available funds for the account of
the Company to Account Number: 320420022891 at Key Bank, ABA Number:
▇▇▇▇▇▇▇▇▇, Name: Genesee & Wyoming Inc. If, at the Closing, the Company shall
fail to tender such Series 2005 Notes to the Purchaser as provided above in
this Section 3, or any of the conditions specified in Section 4 shall not have
been fulfilled to the Purchaser's reasonable satisfaction or waived, the
Purchaser shall, at the Purchaser's election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights the
Purchaser may have by reason of such failure or such nonfulfillment.
4. The obligation of the Purchaser to purchase and pay for the Series
2005 Notes to be sold to the Purchaser at the Closing is subject to the
fulfillment to the Purchaser's reasonable satisfaction or waiver, prior to or
at the Closing, of the conditions set forth in Section 4 of the Note Purchase
Agreement with respect to the Series 2005 Notes to be purchased at the
Closing, to the conditions set forth in the Commitment Letter, dated as of May
25, 2005, between the Company and Banc of America Mezzanine Capital LLC (the
"Commitment Letter") including all attachments, riders and exhibits thereto
and to the following additional conditions:
(a) Except as supplemented, amended or superseded by the
representations and warranties set forth in Exhibit A hereto, each
of the representations and warranties of the Company set forth in
Section 5 of the Note Purchase Agreement shall be correct in all
material respects as of the date of Closing and the Company shall
have delivered to the Purchaser an Officer's Certificate of the
Company, dated the date of the Closing certifying that such
condition has been fulfilled.
(b) Contemporaneously with the Closing, the Company shall sell
to the Purchaser, and the Purchaser shall purchase, the Series 2005
Notes to be purchased by the Purchaser at the Closing as specified
in Schedule A.
(c) Each Subsidiary Guarantor (as defined in that certain
Guaranty Ratification) shall have executed and delivered a Guaranty
Ratification with respect to its Subsidiary Guaranty in the form of
Exhibit B attached hereto.
(d) Each Additional Guarantor (as defined in that certain
Guaranty Joinder) shall have executed and delivered a Guaranty
Joinder in the form of Exhibit C attached hereto.
5. (a) Required Prepayments of Series 2005 Notes.
(i) Notwithstanding any provisions contained in Section 8.1 of the
Note Purchase Agreement, the entire outstanding principal amount of the Series
2005 Notes shall become due and payable on June 1, 2015.
(ii) The entire outstanding principal amount of any Series 2005
Notes held by the Purchaser or any of its Affiliates, in whole, or in part,
shall be prepaid at par together with any interest accrued and unpaid thereon
to the date of such prepayment plus any Libor Breakage Amount from the first
net cash proceeds of any issuance of Notes or other debt securities by the
Company or any of its Restricted Subsidiaries; provided, however, that the net
cash proceeds of any debt issuance in the form of a capital lease for the
purchase of equipment or through government funded or sponsored programs for
rail improvements or the like shall not be required to be used to prepay such
Series 2005 Notes.
"Libor Breakage Amount" shall mean any loss, cost or expense
(other than lost profits) actually incurred by any holder of the
Series 2005 Notes as a result of any payment or prepayment of any
Series 2005 Note on a day other than a regularly scheduled Interest
Payment Date for such Series 2005 Note or at the scheduled maturity
(whether voluntary, mandatory, automatic, by reason of acceleration
or otherwise), and any loss or expense arising from the liquidation
or reemployment of funds obtained by it or from fees payable to
terminate the deposits from which such funds were obtained, provided
that any such loss, cost or expense shall be limited to the time
period from the date of such prepayment through the earlier of (i)
the next Interest Payment Date, or (ii) the maturity date of the
Series 2005 Notes. The holder shall determine the LIBOR Breakage
Amount with respect to the principal amount of its Series 2005 Notes
then being paid or prepaid (or required to be paid or prepaid) by
written notice to the Company setting forth such determination in
reasonable detail not less than two Business Days prior to the date
of prepayment in the case of any prepayment pursuant to Section 5(b)
hereof. Each such determination shall be presumptively correct
absent manifest error
(b) Optional Prepayments. Notwithstanding any provisions contained
in Section 8.2 of the Note Purchase Agreement, the Series 2005 Notes are
subject to prepayment, in whole or in part, at the option of the Company at
par together with any interest accrued and unpaid thereon to the date of such
prepayment plus any Libor Breakage Amount.
(c) Allocation of Partial Prepayments. In the case of each partial
prepayment of the Series 2005 Notes pursuant to this Supplement or the
provisions of Section 8.2 of the Note Purchase Agreement, the principal amount
of the Series 2005 Notes to be prepaid shall be allocated among all of the
Notes of such Series at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof.
6. The Purchaser represents and warrants that the representations
and warranties set forth in Section 6 of the Note Purchase Agreement are true
and correct on the date hereof with respect to the purchase of the Series 2005
Notes by the Purchaser.
7. The Company and the Purchaser agree to be bound by and comply
with the terms and provisions of the Note Purchase Agreement as fully and
completely as if the Purchaser were an original signatory to the Note Purchase
Agreement.
The execution hereof shall constitute a contract between the Company
and the Purchaser for the uses and purposes hereinabove set forth, and this
agreement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one agreement.
GENESEE & WYOMING INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
Accepted as of June 1, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ MEZZANINE CAPITAL LLC
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President