CONFORMED COPY
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KIRBY CORPORATION
$200,000,000
Floating Rate Senior Notes, Series 2005-A, due February 28,
2013
_________
FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENT
_________
Dated as of May 31, 2005
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<PAGE>
FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENT
THIS
FIRST SUPPLEMENT is entered into as of May 31, 2005 (this
"Supplement") between KIRBY CORPORATION, a Nevada
corporation (the "Company"),
and the Purchasers listed in the attached Schedule A (the "Purchasers").
R E C I T A L S
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A. The Company has entered into a Note Purchase
Agreement dated as of
February 15, 2003 with the purchasers listed in Schedule A thereto (as
heretofore supplemented, the "Note Purchase Agreement"); and
B. The Company desires to issue and sell,
and the Purchasers desire to
purchase, an additional series of Notes (as defined in the Note Purchase
Agreement) pursuant to the Note Purchase Agreement and in
accordance with the
terms set forth below;
NOW,
THEREFORE,
the Company and the Purchasers agree as follows:
1. Authorization
of the New Series of Notes.
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(a)
Amount; Designation.
The Company has authorized the issue and
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sale
of $200,000,000 aggregate principal amount of Notes to be
designated
as its Floating Rate Senior Notes,
Series 2005-A, due February
28, 2013 (the "Series 2005-A Notes", such term
to include any such Notes
issued in
substitution therefor pursuant to Section 13 of the Note
Purchase
Agreement).
The Series 2005-A
Notes shall be substantially in the form set
out in Exhibit 1 to this Supplement, with
such changes therefrom, if any,
as may be
approved by the Purchasers and the Company.
(b)
Adjusted Libor
Rate. Section 1.2(b)
of the Note Purchase
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Agreement
shall apply to the Series 2005-A Notes in its entirety,
except
the reference in the definition of
"Adjusted LIBOR Rate" to "1.2%"
shall be deemed
to be a reference to 0.50%.
(c)
Determination of
the Adjusted LIBOR Rate. The reference in
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Section
1.2(c) of the Note Purchase Agreement to "Series
2003-A Notes"
shall be deemed
to be reference to the Series 2005-A Notes.
(d)
Interest Period.
"INTEREST PERIOD" means for any period
for
----------------
which
interest is to be calculated or paid on the Series
2005-A Notes,
the period
commencing on the date of an interest payment, or on the date
of
Closing in the case of the first such period,
continuing up to, but not
including,
the next February 28, May 28, August
28 or November 28, as the
case
may be, or if such date is not a Business
Day, the next succeeding
Business
Day.
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<PAGE>
2. Sale
and Purchase of Series
2005-A Notes. Subject
to the terms and
-----------------------------------------
conditions of this Supplement and the Note
Purchase Agreement, the Company will
issue and sell to each of the
Purchasers, and the Purchasers will purchase from
the Company, at the Closing provided for in
Section 3, Series 2005-A Notes in
the principal amount specified opposite their
respective names in the attached
Schedule A at the purchase price of 100% of
the principal amount thereof. The
obligations of the Purchasers hereunder are several
and not joint obligations
and no Purchaser shall have any liability
to any Person for the performance or
non-performance by any other Purchaser hereunder.
3. Closing.
The sale and purchase of the Series 2005-A Notes to
be
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purchased by the Purchasers shall occur at the offices of Gardner Carton
&
Douglas LLP, 191 North Wacker Drive, Suite
3700, Chicago, Illinois 60606-1698 at
9:00 a.m., Chicago time, at a closing (the
"Closing") on May 31, 2005 or on such
other Business Day thereafter on or prior
to June 15, 2005 as may be agreed upon
by the Company and the Purchasers.
At the Closing, the
Company will deliver to
each Purchaser the Series 2005-A Notes to be
purchased by it in the form of a
single Note (or such greater number of Series
2005-A Notes in denominations of
at least $500,000 as such Purchaser may
request) dated the date of the Closing
and registered in its name (or in the
name of its nominee), against delivery by
such 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 00100359554 at JPMorgan
Chase Bank, 712 Main Street, Houston, Texas
77002, ABA No.
113000609. If at
the Closing the Company shall fail to tender such Series 2005-A Notes
to a
Purchaser as provided above in this Section 3, or any of the conditions
specified in Section 4 of the Note Purchase
Agreement, as modified or expanded
by Section 4 hereof, shall not have been fulfilled to such Purchaser's
satisfaction, such Purchaser shall, at its
election, be relieved of all further
obligations under this Agreement, without
thereby waiving any rights it may have
by reason of such failure or such nonfulfillment.
4. Conditions
to Closing.
Each Purchaser's
obligation to purchase and
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pay for the Series 2005-A Notes to be sold to
it at the Closing is subject to
the fulfillment to its satisfaction, prior to or at the Closing, of the
conditions set forth in Section 4 of the Note
Purchase Agreement, as hereafter
modified, and to the following additional conditions:
(a)
References in
Section 4 of the Note Purchase Agreement to
"Series
2003-A Notes" shall be deemed to be references to the Series
2005-A
Notes and references to the "Closing" shall
be deemed to refer to
the Closing as
such term is defined in this Supplement;
(b)
The reference
in Section 4.2 to the "Memorandum" shall be
deemed
to be a reference to the term "Memorandum" as such term is
defined
in Schedule 5 to this Supplement and the
reference to "Schedule
5.14" shall be
deemed to be a reference to Schedule 5.14 hereto;
(c)
The legal opinions, and forms thereof,
called for by Section
4.4 of the Note Purchase Agreement shall be appropriately modified
to
reflect this
Supplement and
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<PAGE>
the transactions contemplated herein and the rendering of the legal
opinion
by Fulbright & Jaworski L.L.P. in
substitution of the opinion by
Jenkens &
Gilchrist;
(d)
References in
the Note Purchase Agreement to "Other
Purchasers"
shall be deemed to refer to the Purchasers hereunder; and
(e)
At least three Business Days prior to the date of the Closing,
each
Purchaser shall have received a copy of written instructions
signed by a
Responsible Officer on letterhead of the Company confirming the
information
specified in Section 3 including (i) the name
and address of
the transferee bank, (ii) such transferee bank's
ABA number and (iii) the
account
name and number into which the purchase
price for the Notes is to
be
deposited.
5. Representations
and Warranties of the Company. The Company
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represents and warrants to the Purchasers that
each of the representations and
warranties contained in Section 5 of the Note Purchase Agreement
is true and
correct as of the date hereof (i) except
that all references to "Purchaser" and
"you" therein shall be deemed to refer to the Purchasers hereunder, all
references to "this Agreement" shall be deemed to refer to the
Note Purchase
Agreement as supplemented by this Supplement, and all references to
"Series
2003-A Notes" therein shall be deemed to refer
to the Series 2005-A Notes, and
(ii) except for changes to such
representations and warranties or the Schedules
referred to therein, which changes are set forth in the
attached Schedule 5.
6. Representations
of the Purchasers. Each Purchaser confirms to the
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Company that the representations set forth in Section 6 of the Note
Purchase
Agreement are true and correct as to such Purchaser.
7. Mandatory
Prepayment of the
Series 2005-A Notes.
The Series 2005-A
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Notes are not subject to mandatory prepayment by the Company.
8. Optional
Prepayments
of the Series 2005-A
Notes. The Company
may,
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at its option, upon notice as provided below,
prepay at any time all, or from
time to time any part of, the Series 2005-A Notes
in an amount not less than
$1,000,000 in the aggregate in the case of a
partial prepayment, at 100% of the
principal amount so prepaid, plus interest on such
principal amount accrued to
such prepayment date, plus the prepayment premium
set forth below and, if such
prepayment is to occur on any date other than an Interest
Payment Date, the
LIBOR Breakage Amount, if any.
<TABLE>
<CAPTION>
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IF PREPAID DURING THE PERIOD
PREPAYMENT PREMIUM
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<S>
<C>
May 31, 2005 through May 28, 2006
2.0%
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May 29, 2006 through May 28, 2007
1.0%
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May 29, 2007 and thereafter
0.0%
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</TABLE>
The Company will give each holder of
Series 2005-A Notes written notice of each
optional prepayment under this Section 8
not less than 30 days and not more than
60 days prior to the date fixed for such
prepayment. Each such
notice shall
specify such date, the aggregate principal
amount of the Series 2005-A Notes to
be prepaid on such date, the principal amount of each
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<PAGE>
Series 2005-A Note held by such holder to be
prepaid (determined in accordance
with Section 8.3 of the Note Purchase
Agreement), and the interest to be paid on
the prepayment date with respect to such principal amount being prepaid.
9. Applicability
of Note Purchase Agreement. Except as otherwise
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expressly provided herein (and expressly permitted by the Note Purchase
Agreement), all of the provisions of the Note Purchase Agreement are
incorporated by reference herein and shall
