-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N3WP9ohc6UjqPKyfcsypUTX6LDnunDhJSeYP3gDqKtNAvFiNHFVn3j4HlklP/jpp ZLk1OjBarlipAjA6X5nsdQ== 0000893750-05-000305.txt : 20050611 0000893750-05-000305.hdr.sgml : 20050611 20050603154730 ACCESSION NUMBER: 0000893750-05-000305 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20050601 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Completion of Acquisition or Disposition of Assets ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050603 DATE AS OF CHANGE: 20050603 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENESEE & WYOMING INC CENTRAL INDEX KEY: 0001012620 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 060984624 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-31456 FILM NUMBER: 05877650 BUSINESS ADDRESS: STREET 1: 66 FIELD POINT ROAD CITY: GREENWICH STATE: CT ZIP: 06830 BUSINESS PHONE: 2036293722 MAIL ADDRESS: STREET 1: 66 FIELD POINT ROAD CITY: GREENWICH STATE: CT ZIP: 06830 8-K 1 form8k.txt FORM 8-K FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): June 1, 2005 GENESEE & WYOMING INC. - ------------------------------------------------------------------------------ (Exact name of registrant as specified in its charter) DELAWARE 001-31456 06-0984624 - ------------------------------------------------------------------------------ (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 66 FIELD POINT ROAD, GREENWICH, CT 06830 ------------------------------------------------------------------------------ (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (203) 629-3722 - ------------------------------------------------------------------------------ ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT The information set forth under Item 2.01 "COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS" under the "FINANCING OF ACQUISITION" subheading concerning the Senior Notes (as defined therein) is incorporated herein by reference. ITEM 2.01. COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS ACQUISITION OF ASSETS. Pursuant to the terms of a Securities Purchase Agreement (the "Agreement"), dated as of May 25, 2005, by and among two wholly-owned subsidiaries of Genesee & Wyoming Inc. ("GWI"), RP Acquisition Company One, a Delaware corporation ("RP GP Buyer"), and RP Acquisition Company Two, a Delaware corporation ("RP LP Buyer" and together with RP GP Buyer, the "Buyers"), Rail Management Corporation, a Delaware corporation ("RMC"), Durden 1991 Family Gift Trust, a Florida trust (the "91 Family Gift Trust"), Durden 1991 Family Discretionary Trust, a Florida trust (the "Discretionary Trust"), Durden 1991 Family Trust, a Florida trust (the "Family Trust"), K. Earl Durden 1991 Gift Trust, an Alabama trust (the "Gift Trust"), Durden 1996 Family Gift Trust, a Florida trust (the "96 Family Gift Trust", together with the 91 Family Gift Trust, the Discretionary Trust, the Family Trust and the Gift Trust, the "Trusts", and together with RMC, the "Sellers"), effective June 1, 2005, the Buyers own, directly or indirectly, all of the partnership interests of Rail Partners, L.P., a Delaware limited partnership ("RPLP"), all of the issued and outstanding shares of each of Evansville Belt Line Railroad, Inc., an Indiana corporation ("Evansville"), Grizzard Transfer Company, Inc., a Georgia corporation ("Grizzard"), and KWT Railway, Inc., a Tennessee corporation ("KWT", and together with Evansville and Grizzard, the "QSubs"), all of the membership interests in each of AN Railway, L.L.C., a Florida limited liability company ("ANR"), The Bay Line Railroad, L.L.C., an Alabama limited liability company ("Bay Line"), Western Kentucky Railway, L.L.C., a Commonwealth of Kentucky limited liability company ("WKR"), Rail Switching Services, L.L.C., a Delaware limited liability company ("Rail Services"), M&B Railroad, L.L.C., an Alabama limited liability company ("M&B"), and Riceboro Southern Railway, LLC, a Georgia limited liability company ("Riceboro", and together with ANR, Bay Line, Rail Services, M&B and WKR, the "Railroad LLCs") and all of the partnership interests in each of Atlantic & Western Railway, Limited Partnership, a North Carolina limited partnership ("AWR"), East Tennessee Railway, L.P., a Tennessee limited partnership ("ETR"), Galveston Railroad, L.P., a Texas limited partnership ("Galveston"), Georgia Central Railway, L.P., a Georgia limited partnership ("GCR"), Little Rock & Western Railway, L.P., an Arkansas limited partnership ("LRW"), Tomahawk Railway, Limited Partnership, a Wisconsin limited partnership ("Tomahawk"), Valdosta Railway, L.P., a Georgia limited partnership ("Valdosta"), and Wilmington Terminal Railroad, Limited Partnership, a North Carolina limited partnership ("WTR", together with AWR, ETR, Galveston, GCR, LRW, Tomahawk and Valdosta, the "Railroad LPs", and together with RPLP, the QSubs and the Railroad LLCs, the "Acquired Entities"). No material relationship exists between the Sellers and GWI or any of its affiliates, any director or officer of GWI, or any associate of any such director or officer. The purchase price was $243 million, which amount is subject to adjustment post-closing based on the working capital of the Acquired Entities and their subsidiaries on the closing date. The Acquired Entities had approximately $1.7 million of non-interest bearing debt at closing. The purchase price was determined on an arm's-length negotiated basis. DESCRIPTION OF ACQUIRED ASSETS. Founded in 1980, RMC, headquartered in Panama City Beach, Florida, is an operator of short line railroads. The business being acquired is composed of fourteen principal rail operations with locations throughout the South and Southeast United States, including Florida, Alabama, Mississippi, Georgia, Arkansas, Texas, North Carolina, Tennessee and Kentucky. There is also one rail property located in Wisconsin. The main operations are composed of: (i) five former industrial railroads serving the paper and forest products industry, (ii) seven short line railroads, and (iii) two port railroads. RMC operates over 928 miles of track, with 88 locomotives and 1,751 freight cars. The railroads handle approximately 170,000 annual carloads, with approximately 50% of its customers being in the paper and forest products industry. FINANCING OF ACQUISITION. GWI financed the $243 million cash purchase price by (x) expanding the size of its senior revolving credit facility from $150 million to $225 million and drawing down $118 million under such facility at an initial borrowing rate of LIBOR plus 1.375% and (y) completing a private placement of $125 million 10-Year Senior Floating Rate Notes ("Senior Notes"), which have an initial borrowing rate of LIBOR plus 0.85%. Following the acquisition, GWI has approximately $107 million of remaining capacity under its senior revolving credit facility, which will be available for general corporate purposes, including acquisitions. The initial purchaser of the Senior Notes is an affiliate of Banc of America, N.A., which is the administrative agent of GWI's senior credit facility. The Senior Notes were issued pursuant to a supplement (the "First Supplement") to the Note Purchase Agreement, dated as of November 12, 2004 (the "NPA"), and, except as set forth in the First Supplement, are subject to the same terms, conditions and covenants as those contained in the NPA. The Senior Notes are unsecured but are guaranteed by substantially all of GWI's U.S. subsidiaries. This summary is qualified in its entirety by reference to the text of the NPA and the First Supplement, which are incorporated herein by reference and are included as Exhibits 99.2 and 99.3 to this Current Report. ITEM 2.03. CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT The information set forth under Item 2.01 "COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS" under the "FINANCING OF ACQUISITION" subheading is incorporated herein by reference. ITEM 5.02 - DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS ITEM 5.02(b) Resignation of a Director On June 3, 2005, Mr. Anestis, in connection with his retirement from Florida East Coast Industries, Inc., submitted his letter of resignation from the Board, which was accepted. There were no disagreements between Mr. Anestis and GWI regarding GWI's operations, policies or practices. The Board expressed its sincere appreciation for Mr. Anestis's excellent contributions during his services as a director of GWI. ITEM 9.01 EXHIBITS Exhibit No. Description 99.1 Securities Purchase Agreement, dated as of May 25, 2005, by and among Rail Management Corporation, Durden 1991 Family Gift Trust, Durden 1991 Family Discretionary Trust, Durden 1991 Family Trust, K. Earl Durden 1991 Gift Trust, Durden 1996 Family Gift Trust, RP Acquisition Company One and RP Acquisition Company Two (incorporated by reference to Exhibit 99.1 to the Current Report 8-K filed by Genesee & Wyoming Inc. on June 1, 2005) 99.2 Note Purchase Agreement, dated as of November 12, 2004 (incorporated by reference to Exhibit 10.2 to the Current Report 8-K filed by Genesee & Wyoming Inc. on November 18, 2004) 99.3 First Supplement to Note Purchase Agreement, dated as of June 1, 2005. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. GENESEE & WYOMING INC. By: /S/ ADAM B. FRANKEL -------------------------------- Name: Adam B. Frankel Title: Senior Vice President, General Counsel & Corporate Secretary Dated: June 3, 2005 EX-99.3 2 exhibit.txt FIRST SUPPLEMENT TO NOTE PURCHASE AGREEMENT EXECUTION VERSION ================================================================================ 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 ================================================================================ 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 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, 77 W. Wacker Drive, Suite 4100 Chicago, Illinois 60601, 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: 021300077, 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/ Adam Frankel Name: Adam Frankel Title: Secretary Accepted as of June 1, 2005 BANC OF AMERICA MEZZANINE CAPITAL LLC By /s/ Stephen T. Monahan, Jr. Name: Stephen T. Monahan, Jr. Title: President -----END PRIVACY-ENHANCED MESSAGE-----