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.
66 FIELD POINT ROAD
GREENWICH, CONNECTICUT 06830
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
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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 Day
