CONSENT AND FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
CONSENT AND
FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT, dated as of May 25,
2005 (this "Amendment"), by and among
(a) Genesee & Wyoming, Inc., a Delaware
corporation ("GWI" or the "US
Borrower"), (b) Quebec Gatineau Railway
Inc., a corporation constituted under
the laws of Quebec, Canada ("Quebec" or the
"Canadian Borrower", collectively
the US Borrower and the Canadian Borrower,
the "Borrowers"), (c) the
Subsidiaries of the US Borrower listed on
Schedule I thereto and any other
Person which may become a guarantor of the
Obligations in accordance with
ss.9.14 (the "US Guarantors"), (d) Genesee
& Wyoming Canada Inc., Mirabel
Railway Inc., Huron Central Railway Inc.
and St. Lawrence & Atlantic Railroad
(Quebec) Inc.. and any other Person which
may become a guarantor of the
Canadian Obligations in accordance with
ss.9.14 (the "Canadian Guarantors"),
(e) Bank of America, N.A., a national
banking association and the other
lending institutions listed on Schedule II
thereto (the "Lenders"), (f) Bank
of America, N.A., as administrative agent
for itself and such lending
institutions (acting in such capacity, the
"Administrative Agent").
WHEREAS, the
Borrowers, the Guarantors, the Lenders, and the
Administrative Agent are parties to that
certain Amended and Restated
Revolving Credit and Term Loan Agreement,
dated as of November 12, 2004 (as
amended, amended and restated or otherwise
modified and in effect from time to
time, the "Credit Agreement");
WHEREAS, the
Borrowers have informed the Lenders that the US Borrower
contemplates acquiring, directly or
indirectly, all of the outstanding
partnership interests in Rail Partners,
L.P. and certain capital stock,
membership interests and partnership
interests held by Rail Management
Corporation (collectively, the "Target")
for a total purchase price not to
exceed $255,000,000, pursuant to a
Securities Purchase Agreement (as amended,
modified or supplemented from time to time,
the "Purchase Agreement"), by and
among the Sellers (as defined in the
Purchase Agreement) and the Buyers (as
defined in the Purchase Agreement) (such
acquisition being hereinafter
referred to as the "Acquisition");
WHEREAS, the
Borrowers have requested that the Lenders and the
Administrative Agent consent to the
Acquisition, and the Lenders and the
Administrative Agent are willing to consent
to the Acquisition on the terms
set forth herein;
WHEREAS, the
Borrowers have requested that the Lenders and the
Administrative Agent increase the Total
Commitment from $150,000,000 to
$225,000,000, certain Lenders have agreed
to increase their Commitments and
the Lenders and the Administrative Agent
have agreed to such increase in the
Total Commitment;
WHEREAS, the
Borrowers have requested that the Lenders and the
Administrative Agent extend the Maturity
Date of the US Obligations to June
[1], 2010, and the Lenders and the
Administrative Agent have agreed to such
extension; and
<PAGE>
WHEREAS, the
Borrowers, the Lenders, and the Administrative Agent have
agreed to modify certain terms and
conditions of the Credit Agreement as
specifically set forth in this
Amendment;
NOW THEREFORE,
in consideration of the mutual agreements contained herein
and for other good and valuable
consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties
hereto hereby agree as follows:
ss.1. Defined
Terms. Terms not otherwise defined herein which are defined
in the Credit Agreement shall have the same
respective meanings herein as
therein.
ss.2. Consent.
Notwithstanding the provisions of ss.10.3(g) and
ss.10.5.2(i) of the Credit Agreement, each
of the Lenders and the
Administrative Agent hereby consent to the
Acquisition and waive compliance
with ss.10.3(g) and ss.10.5.2(i) in
connection therewith provided that (a) the
Purchase Price for the Acquisition shall
not exceed $255,000,000 in total
consideration, including, without
limitation, cash and assumed liabilities in
connection therewith, (b) the Acquisition
shall comply in all other respects
with the terms of the Credit Agreement,
including without limitation ss.9.14
and the requirements with respect to
Permitted Acquisitions contained in
ss.ss.10.5.2(ii)-(v) and (c) the
Acquisition shall be done in accordance in
all material respects with the Purchase
Agreement.
ss.3. Amendments
to the Credit Agreement.
(a) Section 1.1 of the Credit Agreement is hereby amended by
adding
the following
new defined terms in the appropriate alphabetical order:
"First Amendment. Consent and First Amendment, dated as of May
23, 2005, to this Credit Agreement among the Borrowers, the
Guarantors, the Lenders and the Administrative Agent."
"First Amendment Effective Date. The date on which the
conditions precedent to the First Amendment have been satisfied
or
waived in writing by the Administrative Agent."
"June 2005 Acquisition. The acquisition by the US Borrower,
directly or indirectly, of all of the outstanding partnership
interests in Rail Partners, L.P. and certain capital stock,
membership interests and partnership interests held by Rail
Management Corporation pursuant to documents referred to in the
First Amendment and on terms permitted under the First
Amendment."
(c) Section 1.1 of the Credit Agreement is hereby further amended
by
deleting the
definition of "Applicable Margin" in its entirety and
substituting in
lieu thereof the following:
"Applicable Margin. For each period commencing on an Adjustment
Date through the date immediately preceding the next Adjustment
Date
(each a "Rate Adjustment Period"), the Applicable Margin shall
be
the applicable margin set forth below with respect to the
Funded
Debt to EBITDAR Ratio, as determined
<PAGE>
for the fiscal period of the Borrowers and their Restricted
Subsidiaries ending immediately prior to the applicable Rate
Adjustment Period (except for any Rate Adjustment Period
beginning
on April 1 of any calendar year for which the Applicable Margin
will
be determined by reference to the Funded Debt to EBITDAR Ratio
for
the fiscal period ending on the immediately preceding December
31).
<TABLE>
<CAPTION>
----------- -------------------
------------------- --------------------- ---------------
--------------------------
Level
Funded Debt to
Base Rate, LIBOR
Rate, Canadian Letter of
Commitment
EBITDAR
Canadian Base Rate
LIBOR Rate
Credit
Fee Rate
Ratio
Applicable Margin
Applicable
Applicable
Margin
Margin
----------- -------------------
------------------- --------------------- ---------------
--------------------------
<S>
<C>
<C>
<C>
<C>
<C>
Greater than or
0.250%
1.375%
1.375%
0.300%
I
equal to 3.00 to
1.00
----------- -------------------
------------------- --------------------- ---------------
--------------------------
Greater than or
equal to 2.50 to
II 1.00 but
less
0.0%
1.125%
1.125%
0.250%
than 3.00 to 1.00
----------- -------------------
------------------- --------------------- ---------------
--------------------------
Greater than or
equal to 2.00 to
III 1.00 but
less
0.0%
0.875%
0.875%
0.200%
than 2.50 to 1.00
----------- -------------------
------------------- --------------------- ---------------
--------------------------
IV Less than
2.00 to
1.00
0.0%
0.750%
0.750%
0.200%
----------- -------------------
------------------- --------------------- ---------------
--------------------------
</TABLE>
Notwithstanding the foregoing, (a) during the period commencing
on
the Closing Date through December 31, 2005, the Applicable
Margin
shall be no lower than the Applicable Margin set forth for Level
I
above, and (b) if the Borrowers fail to deliver any Compliance
Certificate pursuant to ss.9.4(c) hereof, then, for the period
commencing on the date such Compliance Certificate was due
pursuant
to ss.9.4(c) through the date such Compliance Certificate is
actually delivered to the Lenders, the Applicable Margin shall
be
the highest Applicable Margin set forth above."
(d) Section 1.1 of the Credit Agreement is hereby further amended
by
deleting the
definition "Maturity Date" in its entirety and substituting
in lieu thereof
the following:
"Maturity Date. (a) As to the US Obligations (other than US
Obligations consisting of guaranties of the Canadian
Obligations),
June [1], 2010, or such earlier date as such US Obligations
become
due and payable pursuant to the terms of this Credit Agreement;
and
(b) as to the Canadian Obligations, November 12,
<PAGE>
2009, or such earlier date as the Canadian Obligations become
due
and payable pursuant to the terms of this Credit Agreement."
(e) Section 1.1 of the Credit Agreement is hereby further amended
by
deleting the
definition "Senior Notes" in its entirety and substituting
in lieu thereof
the following:
"Senior Notes. The 4.85% Series 2004-A notes and any other
notes issued by GWI pursuant to the Note Purchase Agreement dated
as
of November 12, 2004 (as amended, modified or supplemented from
time
to time, the "NPA") in a principal amount not to exceed
$200,000,000."
(f) Section 5.1.3 of the Credit Agreement is hereby amended by
deleting clause
(c) of such ss.5.1.3 in its entirety and substituting in
lieu thereof the
following;
"(c) have an expiry date no later than the date which is seven
(7) days prior to the Maturity Date."
(g) Section 8.14 of the Credit Agreement is hereby amended by
deleting such
ss.8.14 in its entirety and substituting in lieu thereof
the
following:
"8.14. Use of Proceeds; Regulations U and X. The proceeds of
the Loans shall be used by (a) the US Borrower solely for
Permitted
Acquisitions, investments permitted under ss.10.3, the June
2005
Acquisition and for working capital, Capital Expenditures and
general corporate purposes, and (b) the Canadian Borrower for
working capital and general corporate purposes. The US Borrower
will
obtain Letters of Credit solely for working capital and general
corporate purposes. No portion of any Loan is to be used, and
no
portion of any Letter of Credit is to be obtained, for the
purpose
of purchasing or carrying any "margin security" or "margin stock"
as
such terms are used in Regulations U and X of the Board of
Governors
of the Federal Reserve System, 12 C.F.R. Parts 221 and 224."
(h) Section 10.1 of the Credit Agreement is hereby amended by
deleting clause
(o) of such ss.10.1 in its entirety and substituting in
lieu thereof the
following:
"(o) (i) Indebtedness with respect to the Senior Notes, in an
aggregate outstanding principal amount not to exceed $200,000,000
at
any one time or (ii) Indebtedness incurred with respect to
unsecured
term debt or an unsecured revolving credit loan, to be used
solely
in
connection with the June 2005 Acquisition, in an aggregate
outstanding principal amount not to exc
