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| GWR > SEC Filings for GWR > Form 8-K on 3-Oct-2012 | All Recent SEC Filings |
3-Oct-2012
Entry into a Material Definitive Agreement, Termination of a Material Defin
1. Credit Agreement
Overview
On October 1, 2012, the Company entered into the Senior Secured Syndicated Facility Agreement, dated as of October 1, 2012, with RP Acquisition Company Two ("RP" and, together with the Company, the "Domestic Borrowers"), Quebec Gatineau Railway Inc. (the "Canadian Borrower"), Genesee & Wyoming Australia Pty Ltd (the "Australian Borrower"), Rotterdam Rail Feeding B.V. (the "European Borrower" and, together with the Domestic Borrowers, the Canadian Borrower and the Australian Borrower, the "Borrowers"), Bank of America, N.A., as administrative agent, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Citigroup Global Markets Inc., as co-lead arrangers and co-bookrunning managers, JPMorgan Chase Bank, N.A. and Citigroup Global Markets Inc., as co-syndication agents, The Bank of Tokyo-Mitsubishi UFJ, Ltd., Sumitomo Mitsui Banking Corporation, Sovereign Bank N.A., Branch Banking and Trust Company, Fifth Third Bank, Royal Bank of Canada, TD Bank, N.A. and Wells Fargo Bank, National Association, as co-documentation agents, and the lenders and certain guarantors party thereto from time to time (the "New Credit Agreement").
The New Credit Agreement provides for (i)(a) term loans denominated in U.S.
dollars in an aggregate principal amount of $1,640,000,000 (the "Domestic Term
Loans"), (b) term loans denominated in Canadian dollars in an aggregate
principal amount of CAD$24,587,500 (the "Canadian Term Loans") and (c) term
loans denominated in Australian dollars in an aggregate principal amount of
AUD$202,944,000 (the "Australian Term Loans" and, together with the Domestic
Term Loans and the Canadian Term Loans, the "Term Loans") in each case under the
new senior secured term loan facilities (the "New Term Loan Facilities") and
(ii) a new senior secured revolving credit facility for up to $425,000,000 of
revolving extensions of credit outstanding at any time (including revolving
loans, swingline loans and letters of credit) (the "New Revolving Credit
Facility" and, together with the New Term Loan Facilities, the "New Credit
Facilities"). The maturity date of the New Credit Facilities (the "Maturity
Date") is October 1, 2017, or such earlier date as the obligations under the New
Credit Facilities become due and payable pursuant to the terms of the New Credit
Agreement.
Interest Rate and Fees
At the Company's election, the interest rate per annum applicable to the domestic borrowings under the New Credit Facilities will be based on the sum of the applicable margin and a fluctuating rate of interest determined by . . .
On October 1, 2012, in connection with the Merger, the Company repaid in full
all outstanding loans, together with interest and all other amounts due in
connection with such repayment under that certain Third Amended and Restated
Revolving Credit and Term Loan Agreement, among (a) the Company and RP
Acquisition Company Two, a Delaware corporation, (b) Quebec Gatineau Railway
Inc., a corporation constituted under the laws of Quebec, Canada, (c) Genesee &
Wyoming Australia Pty Limited (ACN 079 444 296), a proprietary limited company
incorporated under the laws of Australia, (d) Rotterdam Rail Feeding B.V., a
private limited liability company constituted under the laws of the Netherlands,
(e) certain guarantors specified therein, (f) Bank of America, N.A., a national
banking association and certain other lending institutions listed therein,
(g) Bank of America, N.A., as administrative agent, domestic swingline lender
and issuing lender, (h) Bank of America, N.A., acting through its Canada branch,
as Canadian swingline lender and Canadian agent, (i) Bank of America, N.A.,
acting through its London branch, as European swingline lender and European
agent, (j) Bank of America, N.A., acting through its Australia branch, as
Australian swingline lender, (k) JPMorgan Chase Bank, N.A. and Deutsche Bank
Securities Inc., as co-syndication agents and (l) Australia and New Zealand
Banking Group Limited and Keybank National Association, as co-documentation
agents (the "Prior Credit Facility"), and terminated the Prior Credit Facility.
No penalties were due in connection with such repayments.
On October 1, 2012, the Company completed the previously-announced Merger pursuant to the terms of the Merger Agreement. Upon consummation of the Merger, RailAmerica was wholly owned by the Company. As contemplated by the Merger Agreement, the Company filed a notice of exemption with the STB to close the Merger into a sole voting trust which became effective on September 5, 2012, and, therefore, immediately following consummation of the Merger, the Company transferred the stock of RailAmerica to the Trustee pursuant to the Voting Trust Agreement to hold such shares of stock in trust pending formal STB approval of the Company's application to control RailAmerica's railroads.
Under the terms of the Merger Agreement, each share of common stock, par value $0.01 per share, of RailAmerica was converted into the right to receive $27.50 per share in cash, without interest. At the effective time of the Merger, unvested shares of RailAmerica restricted stock and RailAmerica restricted share units were converted into comparable awards in respect of the Company's Class A Common Stock, par value $0.01 per share ("Class A Common Stock").
The aggregate purchase price paid for all of the equity securities of the Company was approximately $1.4 billion, which purchase price was funded by new equity financing received by the Company, the New Credit Facilities and available cash from the Company's balance sheet.
The information set forth in Section 1 of Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 2.03.
As part of the financing for the Merger, on October 1, 2012, the Company
completed the previously announced issuance of 350,000 shares of Mandatorily
Convertible Preferred Stock, Series A-1, par value $0.01 per share (the "Series
A-1 Preferred Stock"), to Carlyle Partners V GW, L.P., CP V GW AIV 1, L.P., CP V
GW AIV 2, L.P., CP V GW AIV 3, L.P., CP V GW AIV 4, L.P., CP V Coinvestment A,
L.P. and CP V Coinvestment B, L.P. (collectively, the "Purchasers"), affiliates
of Carlyle Partners V, L.P. ("Carlyle"), for an aggregate purchase price of
Pursuant to the Investment Agreement, on October 1, 2012, the Company and the Purchasers entered into a registration rights agreement (the "Registration Rights Agreement"), pursuant to which the Company granted the Purchasers certain registration rights. A copy of the Registration Rights Agreement is attached as Exhibit 10.3 to this Current Report and is incorporated herein by reference.
The applicable terms and preferences attached to the Series A-1 Preferred Stock are more fully described in Item 1.01 of the Company's Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 23, 2012, and are contained in the Certificate of Designations attached hereto as Exhibit 3.1.
The information set forth above in Item 3.02 is hereby incorporated by reference into this Item 3.03.
The Purchasers, as the holders of 350,000 shares of the Series A-1 Preferred Stock, have the right to designate and elect one member of the Company's board of directors (the "Board") pursuant to the Certificate of Designations. The Purchasers designated and the Board elected Gregory Ledford to the Board as of October 2, 2012. Mr. Ledford has not been appointed to serve on any committee of the Board.
The Board also elected Richard Bott to the Board as of October 1, 2012. Mr. Bott has not been appointed to serve on any committee of the Board.
On September 28, 2012, the Company filed the Certificate of Designations with the Secretary of State of the State of Delaware for the purpose of establishing the preferences, limitations, voting powers and relative rights of the Series A-1 Preferred Stock. The Certificate of Designations became effective with the Delaware Secretary of State upon filing. This description is qualified in its entirety by reference to the copy of the Certificate of Designations, which is attached hereto as Exhibit 3.1.
In connection with the consummation of the Merger, the Company called for redemption all of the outstanding $100.0 million aggregate principal amount of the Company's 5.36% Series 2005-B Senior Notes due July 26, 2015 (the "Notes") pursuant to the Note Purchase Agreement dated as of November 12, 2004, among the Company, and the purchasers named therein and the Second Supplement to the Note Purchase Agreement dated as of July 26, 2005, among the Company and the purchasers named therein (the "Second Supplement"). The redemption was conditioned upon, and occurred concurrently with, the closing of the Merger. The Notes were redeemed for an aggregate amount equal to $113,599,977.62, which represented the aggregate principal, accrued and unpaid interest and the applicable Make-Whole Amount (as defined in the Second Supplement).
On October 2, 2012, the Company announced the appointments of Mr. Ledford and Mr. Bott to the Board. A copy of the press release is filed as Exhibit 99.1 hereto and is incorporated into this Item 8.01 by reference.
(a) Financial statements of businesses acquired.
(1) Audited consolidated financial statements of RailAmerica as of and for the years ended December 31, 2011, 2010 and 2009, which were included in RailAmerica's Annual Report on Form 10-K for the year ended December 31, 2011, are filed as Exhibit 99.2 and incorporated herein by reference.
(2) Unaudited consolidated financial statements of RailAmerica as of March 31, 2012 and December 31, 2011 and for the three months ended March 31, 2012 and 2011, which were included in RailAmerica's Quarterly Report on Form 10-Q for the quarter ended March 31, 2012, are filed as Exhibit 99.3 and incorporated herein by reference.
(3) Unaudited consolidated financial statements of RailAmerica as of June 30, 2012 and December 31, 2011 and for the three and six months ended June 30, 2012 and 2011, which were included in RailAmerica's Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, are filed as Exhibit 99.4 and incorporated herein by reference.
(4) Unaudited consolidated statements of comprehensive income of RailAmerica for the years ended December 31, 2011, 2010 and 2009, which were included in RailAmerica's Current Report on Form 8-K filed on September 7, 2012, are filed as Exhibit 99.5 and incorporated herein by reference.
(b) Pro forma financial information.
The required unaudited condensed combined pro forma financial information with respect to the Merger is filed as Exhibit 99.6 and is incorporated herein by reference.
(d) Exhibits.
The following exhibits are filed herewith:
Exhibit Description
Exhibit 3.1 Series A-1 Preferred Stock Certificate of Designations dated as of
September 28, 2012.
Exhibit 10.1 Senior Secured Syndicated Facility Agreement dated as of October 1,
2012, among the Company, RP Acquisition Company Two, Quebec
Gatineau Railway Inc., Genesee & Wyoming Australia Pty Ltd,
Rotterdam Rail Feeding B.V., Bank of America, N.A., as
administrative agent, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities LLC and Citigroup Global
Markets Inc., as co-lead arrangers and co-bookrunning managers,
JPMorgan Chase Bank, N.A. and Citigroup Global Markets Inc., as
co-syndication agents, The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
Sumitomo Mitsui Banking Corporation, Sovereign Bank N.A., Branch
Banking and Trust Company, Fifth Third Bank, Royal Bank of Canada,
TD Bank, N.A. and Wells Fargo Bank, National Association, as
co-documentation agents, and the lenders and certain guarantors
party thereto from time to time.
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Exhibit 10.2 Voting Trust Agreement, dated as of September 28, 2012, between the
Company and R. Lawrence McCaffrey.
Exhibit 10.3 Registration Rights Agreement dated as of October 1, 2012, among
the Company, Carlyle Partners V GW, L.P., CP V GW AIV 1, L.P., CP V
GW AIV 2, L.P., CP V GW AIV 3, L.P., CP V GW AIV 4, L.P., CP V
Coinvestment A, L.P. and CP V Coinvestment B, L.P.
Exhibit 99.1 Press release, dated October 2, 2012 announcing director
appointments.
Exhibit 99.2 Audited consolidated financial statements of RailAmerica as of and
for the years ended December 31, 2011, 2010 and 2009 (incorporated
by reference to Exhibit 99.1 to the Company's Current Report on
Form 8-K, filed on September 12, 2012).
Exhibit 99.3 Unaudited consolidated financial statements of RailAmerica as of
March 31, 2012 and December 31, 2011 and for the three months ended
March 31, 2012 and 2011 (incorporated by reference to Exhibit 99.2
to the Company's Current Report on Form 8-K, filed on September 12,
2012).
Exhibit 99.4 Unaudited consolidated financial statements of RailAmerica as of
June 30, 2012 and December 31, 2011 and for the three and six
months ended June 30, 2012 and 2011 (incorporated by reference to
Exhibit 99.3 to the Company's Current Report on Form 8-K, filed on
September 12, 2012).
Exhibit 99.5 Unaudited consolidated statements of comprehensive income of
RailAmerica for the years ended December 31, 2011, 2010 and 2009
(incorporated by reference to Exhibit 99.4 to the Company's Current
Report on Form 8-K, filed on September 12, 2012).
Exhibit 99.6 The required unaudited condensed combined pro forma financial
information with respect to the Merger (incorporated by reference
to Exhibit 99.5 to the Company's Current Report on Form 8-K, filed
on September 12, 2012).
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