EXHIBIT 4.1
FIRST AMENDMENT TO PROMISSORY NOTE
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The FIRST AMENDMENT TO PROMISSORY NOTE (this "Note Amendment") dated as of
March 19, 1999 between Buffalo & Pittsford Railroad, Inc. (the "Borrower or
Maker") and CSX Transportation, Inc. (the "Lender")
W I T N E S S E T H:
WHEREAS, Lender is the current holder of a certain promissory note dated
October 7, 1991, (the "Original Note") in the original principal amount of Nine
Million Five Hundred Thousand and no/100 Dollars ($9,500,000.00); and
WHEREAS, the parties hereto are desirous of amending the Original Note in
the manner hereinafter provided.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
(1) Section 1(a) on Page one (1) of the Original Note is deleted in its
entirety and substituting in its place:
1(a) Interest on the principal sum evidenced by this Note shall commence to
accrue from October 8, 1991, through and ending September 30, 1992, at the rate
of six percent (6%) per annum, and from and including October 1, 1992, and
thereafter, at the rate of eight percent (8%) per annum (the "Interest Rate"),
and shall be paid in arrears on the first day of January, 1992 and on the first
day of each consecutive calendar quarter thereafter, to and including the first
day of October, 2000.
(2) Section 1(b) on Page two (2) and three (3) of the Original Note is
deleted in its entirety and substituting in its place:
1(b) Commencing on the 31st day of December, 1991, and on the 31st day of
each consecutive December thereafter, to and including the 31st day of December,
1999 (each a "Principal Installment Due Date"), there shall be due and payable
equal annual installments of principal, each in the amount of One Million One
Hundred Eighty Seven Thousand Five Hundred and No/100 Dollars ($1,186,500.00)
provided however, that the Maker's obligation to pay any such annual installment
of principal shall be subject to the following: if, during the twelve (12)
month period ending on the 31st day of December immediately preceding any
Principal Installment Due Date, the Maker has generated freight revenue in
excess of Sixteen Million Four Hundred Thousand Dollars ($15,400,000.00) and a
positive cash flow (as hereinafter defined), the Maker shall use one-half (1/2)
of said excess freight revenues (but only to the extent of such positive cash
flow) to pay, on or prior to the next succeeding Principal Installment Due Date,
any arrearage owing on any annual installment(s) of principal due on any prior
Principal Installment Due Date and the annual installment of principal due on
such next succeeding Principal Installment Due Date.
"Cash Flow" shall mean, for any twelve (12) month period ending on December
31, the Maker's net income, plus depreciation expenses, plus payments made
pursuant to a promissory note payable to Xxxxxx X. Xxxxxx Estate Corporation or
one of its affiliates dated September 27, 1991 with a face amount of $1,303,967,
less all payments under this Note toward annual installments of principal made
during such period (including payments made to Holder pursuant to Subsection (c)
of this Section 1, less payments made pursuant to a promissory note payable to
Holder dated October 31, 1990 with a face amount of One Million Two Hundred
Ninety Thousand Three Hundred Twenty-One and 84/100 ($1,290,321.84) less capital
expenditures of Maker not to exceed $2,600,000. Because any Principal
Installment Due Date will occur, and therefore any determinations of freight
revenues and cash flow will be made, prior to makers receiving its audited
financial statements covering its immediately preceding fiscal year, such
determinations shall be made in the first instance upon the basis of Maker's
unaudited financial statements for such year. When Maker's audited financial
statements become available, such determination shall be recalculated and, to
the extent of any difference from the earlier determination, a cash adjustment
promptly shall be made between Maker and Holder.
(3) Section 1(d) on Page 4 of the Original Note is deleted in its entirety
and substituting in its place:
1(d) On October 1, 2000 (the "Maturity Date"), a final payment in the
aggregate of the unpaid principal sum due on this Note, all accrued and unpaid
interest thereon, and all other sums evidenced by this Note, or secured or
governed by or relating to the Mortgage, the Security Agreement and/or any other
instrument collateral, incidental or related thereto (this Note, the Mortgage,
the Security Agreement and any and all other documents evidencing, securing or
relating to the indebtedness evidenced by this Note or secured by the Mortgage
and the Security Agreement, and all renewals, modifications, consolidations and
extensions of such documents, being herein collectively referred to as the "Loan
Documents"), shall become immediately due and payable in full.
(4) This "Note" or the "Note" shall be deemed to mean the Original Note as
amended by this Note Amendment. Except as herein modified, the terms and
provisions of the Original Note shall, in all other respects, remain unmodified,
are hereby reaffirmed, and shall remain in full force and effect. This Note
Amendment is deemed incorporated into the Original Note as if fully set forth at
length therein.
(5) This Note Amendment may not be modified orally, but only a writing
executed by all of the parties hereto.
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IN WITNESS WHEREOF the parties have executed their Note Amendment as of the
date and year first above written.
Borrower's Address: BORROWER:
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Buffalo and Pittsburgh Railroad, Inc. /s/ Xxxx X. Xxxxxxxx (SEAL)
00 Xxxxx Xxxxxx ______________________________
Xxxxxxxxx, XX 00000 ______________________________(SEAL)
ATTEST:
___________________________________
Print Name:________________________
Print Title:_______________________
LENDER:
CSX TRANSPORTATION, INC.
By /s/ X.X. Xxxxxx
_________________________________
Print Name: X.X. Xxxxxx
_____________________
Print Title: AVP Asset Management
_____________________
ATTEST:
/s/ Xxxxx X. Xxxxx
_________________________________
Print Name: Xxxxx X. Xxxxx
_____________________
Print Title: Assistant Secretary
_____________________
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