Looking for an agreement? Search from over 1 million agreements now.

Amendment No.2 To 2ND Amended & Restated Revolving Credit & Term Loan Agreement

This is an actual contract by Genesee & Wyoming.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
Exhibit 10.21

EXECUTION VERSION

AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED

REVOLVING CREDIT AND TERM LOAN AGREEMENT

AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this " Amendment" ), dated as of October 15, 2010, by and among (a) GENESEE & WYOMING INC. , a Delaware corporation (" GWI" ) and RP ACQUISITION COMPANY TWO , a Delaware corporation (" RP" and, together with GWI, each a " Domestic Borrower" and collectively, the " Domestic Borrowers" ), (b) QUEBEC GATINEAU RAILWAY INC. , a corporation constituted under the laws of Quebec, Canada (the " Canadian Borrower" ), (c) GENESEE & WYOMING AUSTRALIA PTY LTD (ACN 079 444 296), a proprietary limited company incorporated under the laws of Australia (the " Australian Borrower" ), (d) ROTTERDAM RAIL FEEDING B.V. , a private limited liability company constituted under the laws of the Netherlands (the " European Borrower" ), (e) the Subsidiaries of GWI listed on Schedule I to the Credit Agreement (as defined below) as of the date hereof and any other Person which may become a guarantor of the Obligations in accordance with Section 9.14 of the Credit Agreement (collectively, the " U.S. Guarantors" ), (f) GENESEE & WYOMING CANADA INC. , MIRABEL RAILWAY INC. , ST. LAWRENCE & ATLANTIC RAILROAD (QUEBEC) INC. , SERVICES FERROVIAIRES DE L' ESTUAIRE and WESTERN LABRADOR RAIL SERVICES INC. (collectively, the " Canadian Guarantors" ), (g) GENESEE & WYOMING C.V., GWI HOLDING B.V., and BELGIUM RAIL FEEDING BVBA (collectively, the " European Guarantors" ), (h) GWI HOLDINGS PTY LTD (ACN 094 819 806), VIPER LINE PTY LIMITED (ACN 092 437 691), SA RAIL PTY LIMITED (ACN 077 946 340), GENESEE AND WYOMING AUSTRALIA EASTERN PTY LTD. (ACN 142 367 280) and GWI HOLDINGS NO. 2 PTY LTD. (ACN 132 989 998) (collectively, the " Australian Guarantors" ), (i) any other Person which may become a guarantor of the Foreign Obligations in accordance with Section 9.14 of the Credit Agreement (together with the Canadian Guarantors, the European Guarantors and the Australian Guarantors, the " Foreign Guarantors" and, together with the U.S. Guarantors, the " Guarantors" and, together with the Borrowers, the " Loan Parties" ), (j) BANK OF AMERICA, N.A., a national banking association and certain of the other lending institutions party to the Credit Agreement (the " Required Lenders" ), and (k) BANK OF AMERICA, N.A. , as administrative agent for the Lenders (acting in such capacity, the " Administrative Agent" ).

WHEREAS, the Loan Parties, the Required Lenders, and the Administrative Agent are parties to that certain Second Amended and Restated Revolving Credit and Term Loan Agreement, dated as of August 8, 2008 (as the same may be amended, amended and restated or otherwise modified and in effect from time to time, including as amended by that certain Amendment No. 1 to Second Amended and Restated Revolving Credit and Term Loan Agreement, dated as of June 30, 2010 (the " First Amendment" ), by and among the Loan Parties, the Lenders and the Administrative Agent, the " Credit Agreement" );

WHEREAS, the Loan Parties desire to (a) increase the Aggregate Domestic Revolving Loan Commitments and the Aggregate Australian Commitments as provided more fully herein and (b) amend certain provisions of the Credit Agreement as provided more fully herein;

WHEREAS, the Required Lenders have agreed to amend such provisions as provided more fully herein and certain of the Required Lenders (the " Increasing Lenders" ) have agreed to increase their respective Australian Commitments as provided more fully herein;

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:

SECTION 1. Definitions . Unless otherwise defined herein, capitalized terms used herein shall have the meanings provided therefor in the Credit Agreement.

SECTION 2. Amendments to the Credit Agreement .

2.01. Amendments to Credit Agreement . The amendments set forth in Sections 2.10 and 2.24 of the First Amendment shall, notwithstanding anything contained therein to the contrary, be deemed effective as of the Second Amendment Effective Date (as defined below).

2.02. Amendment to Section 7.1 . Clause (a)(i)(A) of Section 7.1 to the Credit Agreement is hereby amended by deleting the text " under this Credit Agreement or any of the other Loan Documents" contained therein.

2.03. Amendment to Schedule II . Schedule II to the Credit Agreement is hereby amended by deleting such Schedule in its entirety and substituting in lieu thereof Schedule II attached hereto as Exhibit A.

SECTION 3. Amendment to First Amendment . Section 6.02 of the First Amendment shall be amended by deleting the date " October 31, 2010" contained therein and substituting in lieu thereof the date " December 6, 2010" .

SECTION 4. Agreement by Increasing Lenders to Increase Australian Commitments . Each of the Increasing Lenders hereby acknowledges and agrees that, as of the Second Amendment Effective Date, its Australian Commitment shall be equal to the amount set forth for the Australian Commitment opposite such Lender' s name in Schedule II attached hereto as Exhibit A. Each of the Increasing Lenders hereby further acknowledges and agrees that, as of the Second Amendment Effective Date, for purposes of reflecting the increase in the Australian Commitments and any future reallocations of Commitments pursuant to Section 2.10 of the Credit Agreement, its Domestic Revolving Loan Commitment shall be equal to the amount set forth for the Domestic Revolving Loan Commitment opposite such Lender' s name in Schedule II attached hereto as Exhibit A.

SECTION 5. Representations and Warranties . The Loan Parties hereby represent and warrant to the Lenders and the Administrative Agent as follows:

(a) Representations and Warranties in the Credit Agreement . The representations and warranties of the Loan Parties contained in the Credit Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with

-2-

the Credit Agreement were true and correct in all material respects as of the date when made and continue to be true and correct in all material respects on the date hereof, except to the extent of changes resulting from transactions contemplated or permitted by the Credit Agreement, as amended by this Amendment, and the other Loan Documents and changes occurring in the ordinary course of business that singly or in the aggregate are not materially adverse to the Agents and the Lenders, or the extent that such representations and warranties relate expressly to an earlier date.

(b) Ratification, Etc. Except as expressly amended hereby, the Credit Agreement, the other Loan Documents and all documents, instruments and agreements related thereto, are hereby ratified and confirmed in all respects and shall continue in full force and effect. The Credit Agreement, together with this Amendment, shall be read and construed as a single agreement. All references in the Loan Documents to the Credit Agreement or any other Loan Document shall hereafter refer to the Credit Agreement or any other Loan Document as amended hereby.

(c) Authority, Etc . The execution and delivery by each of the Loan Parties of this Amendment and the performance by each of the Loan Parties of all of their agreements and obligations under the Credit Agreement as amended and the other Loan Documents hereby are (i) within the corporate or other authority of each of the Loan Parties, (ii) have been duly aut
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |