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<SEC-DOCUMENT>0000950131-97-002298.txt : 19970401
<SEC-HEADER>0000950131-97-002298.hdr.sgml : 19970401
ACCESSION NUMBER: 0000950131-97-002298
CONFORMED SUBMISSION TYPE: 10-K405
PUBLIC DOCUMENT COUNT: 19
CONFORMED PERIOD OF REPORT: 19961231
FILED AS OF DATE: 19970331
SROS: CSX
SROS: NYSE
SROS: PSE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BURLINGTON NORTHERN SANTA FE CORP
CENTRAL INDEX KEY: 0000934612
STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011]
IRS NUMBER: 411804964
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K405
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-11535
FILM NUMBER: 97571421
BUSINESS ADDRESS:
STREET 1: 3800 CONTINENTAL PLZ
STREET 2: 777 MAIN ST
CITY: FT WORTH
STATE: TX
ZIP: 76102
BUSINESS PHONE: 8173332000
MAIL ADDRESS:
STREET 1: 3800 CONTINENTAL PLAZA
STREET 2: 777 MAIN STREET
CITY: FORT WORTH
STATE: TX
ZIP: 76102-5384
FORMER COMPANY:
FORMER CONFORMED NAME: BURLINGTON NORTHERN SANTE FE CORP
DATE OF NAME CHANGE: 19950913
FORMER COMPANY:
FORMER CONFORMED NAME: BNSF CORP
DATE OF NAME CHANGE: 19941223
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K405
<SEQUENCE>1
<DESCRIPTION>FORM 10-K
<TEXT>
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER: 1-11535
------------
BURLINGTON NORTHERN SANTA FE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 41-1804964
(State of Incorporation) (I.R.S. Employer Identification No.)
2650 Lou Menk Drive
Second Floor
Fort Worth, Texas 76131-2830
(Address of principal executive offices, including zip code)
817/333-2000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
------------------- -----------------------
<S> <C>
Common Stock, $0.01 par value New York Stock Exchange
Chicago Stock Exchange
Pacific Stock Exchange
</TABLE>
------------
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirement for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of the
registrant was approximately $12.98 billion on February 28, 1997. For purposes
of this calculation only, the registrant has excluded stock beneficially owned
by directors and officers. By doing so, the registrant does not admit that
such persons are affiliates within the meaning of Rule 405 under the
Securities Act of 1933 or for any other purpose.
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date:
Common Stock, $0.01 par value, 154,271,308 shares outstanding as of February
28, 1997.
DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the documents from which parts thereof have been incorporated
by reference and the part of the Form 10-K into which such information is
incorporated:
<TABLE>
<S> <C>
Annual
Report to
Shareholders
for the
fiscal year
ended
December
31, 1996... PARTS I, II, AND IV
Proxy
Statement
dated March
5, 1997.... PART III
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PART I
Items 1 and 2. Business and Properties.................................... 1
Rail.................................................................. 1
Pipeline Investment................................................... 10
Item 3. Legal Proceedings................................................. 11
Item 4. Submission of Matters to a Vote of Security Holders............... 16
EXECUTIVE OFFICERS OF THE REGISTRANT...................................... 17
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters.................................................................. 18
Item 6. Selected Financial Data........................................... 18
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.................................................... 18
Item 8. Financial Statements and Supplementary Data....................... 18
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure..................................................... 19
PART III
Item 10. Directors and Executive Officers of the Registrant............... 19
Item 11. Executive Compensation........................................... 19
Item 12. Security Ownership of Certain Beneficial Owners and Management... 19
Item 13. Certain Relationships and Related Transactions................... 19
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K. 20
SIGNATURES................................................................ S-1
REPORTS OF INDEPENDENT ACCOUNTANTS AND
CONSOLIDATED FINANCIAL STATEMENTS AND SCHEDULE............................ F-1
EXHIBITS.................................................................. E-1
</TABLE>
i
<PAGE>
PART I
ITEMS 1 AND 2. BUSINESS AND PROPERTIES
Burlington Northern Santa Fe Corporation ("BNSF") was incorporated in the
State of Delaware on December 16, 1994. On September 22, 1995, the
stockholders of Burlington Northern Inc. ("BNI") and Santa Fe Pacific
Corporation ("SFP") became the stockholders of BNSF pursuant to a business
combination of the two companies. In order to effect the combination, BNSF was
formed to act as the parent holding company of BNI and SFP.
On October 13, 1994, BNI, Burlington Northern Railroad Company ("BNRR"),
SFP, and The Atchison, Topeka and Santa Fe Railway Company ("ATSF") filed a
railroad merger and control application with the Interstate Commerce
Commission ("ICC"). On August 23, 1995, the ICC issued its written decision
approving and authorizing BNI's acquisition of control of SFP and the business
combination by which BNI and SFP became subsidiaries of BNSF, the resulting
common control of BNRR and ATSF by BNSF, the consolidation of BNRR and ATSF by
BNSF, the consolidation of BNRR and ATSF operations, and the merger of BNRR
and ATSF. Pursuant to the ICC's permissive authority, the business combination
was effected on September 22, 1995.
On December 30, 1996, BNI merged with and into SFP. On December 31, 1996,
ATSF merged with and into BNRR, and BNRR changed its name to The Burlington
Northern and Santa Fe Railway Company ("BNSF Railway").
Through its subsidiaries, BNSF is engaged primarily in the rail
transportation business. BNSF also has an equity interest in Santa Fe Pacific
Pipeline Partners, L.P., which operates a refined petroleum products pipeline
system in six western and southwestern states.
At December 31, 1996, BNSF and its subsidiaries had approximately 43,000
employees.
RAIL
The rail operations of BNSF Railway, BNSF's principal operating subsidiary,
comprise one of the largest railroad systems in the United States.
TRACK CONFIGURATION
BNSF Railway operates over a railroad system of approximately 35,000 route
miles of track (excluding, among other things, second main track) at December
31, 1996, approximately 27,000 miles of which are owned route miles, including
easements, through 29 states and two Canadian provinces. Approximately 7,900
route miles of BNSF Railway's system consist of trackage rights which permit
BNSF Railway to operate its trains with its crews over another railroad's
tracks.
As of December 31, 1996, the total BNSF Railway system--including first,
second, third and fourth main tracks, yard tracks, and sidings--consisted of
approximately 52,500 operated miles of track, all of which were owned by or
held under easement by BNSF Railway except for approximately 8,700 miles
operated under trackage rights agreements with other parties. At December 31,
1996, approximately 28,100 miles of BNSF Railway's track consisted of 112-
pound per yard or heavier rail, including approximately 18,200 track miles of
131-pound per yard or heavier rail.
EQUIPMENT CONFIGURATION
BNSF Railway owned or had under non-cancelable leases exceeding one year the
following units of railroad rolling stock (represents combined BNRR and ATSF
amounts):
1
<PAGE>
<TABLE>
<CAPTION>
AT DECEMBER 31,
--------------------
1996 1995 1994
------ ------ ------
<S> <C> <C> <C>
Diesel Locomotives...................................... 4,434 4,277 4,157
====== ====== ======
Freight Cars:
Box--general purpose................................... 1,082 1,204 1,529
Box--specially equipped................................ 10,719 10,985 10,971
Open Hopper............................................ 10,430 10,497 11,630
Covered Hopper......................................... 44,112 44,840 43,223
Gondola................................................ 11,714 11,467 10,665
Refrigerator........................................... 6,817 7,216 6,489
Autorack............................................... 3,597 3,600 3,567
Flat................................................... 5,508 5,774 5,517
Tank................................................... 493 505 552
Caboose................................................ 451 485 542
Other.................................................. 732 734 747
------ ------ ------
Total Freight Cars.................................... 95,655 97,307 95,432
====== ====== ======
Domestic Containers.................................... 15,595 16,230 16,793
Trailers............................................... 821 834 633
Domestic Chassis....................................... 5,273 5,274 7,365
Company Service Cars................................... 6,140 6,084 6,218
Commuter Passenger Cars................................ 141 141 141
</TABLE>
In addition to the containers, trailers, and chassis shown above, BNSF
Railway had under short-term leases 6,615 containers, 2,766 trailers, and
16,758 chassis, at December 31, 1996. In addition to the owned and leased
locomotives identified above, BNSF Railway operated 196 freight locomotives
under power-purchase agreements as of December 31, 1996. The average ages from
date of manufacture or remanufacture of the locomotive and freight car fleets
at December 31, 1996, were 12.24 years for locomotives, and 18.83 years for
freight cars. These averages are not weighted to reflect the greater
capacities of the newer equipment.
2
<PAGE>
CAPITAL EXPENDITURES AND MAINTENANCE
BNSF Railway capital expenditures for the periods indicated were as follows
(represents combined BNRR and ATSF amounts for all periods):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER
31,
--------------------
(IN MILLIONS)
1996 1995 1994
------ ------ ------
<S> <C> <C> <C>
Ties................................................... $ 225 $ 161 $ 136
Rail/Other Track Material.............................. 406 288 277
Ballast................................................ 184 138 131
Facilities and Other Roadway........................... 660 387 391
Locomotives............................................ 425 111 93
Freight Cars........................................... 55 25 42
Other.................................................. 279 105 90
------ ------ ------
Cash Capital Expenditures.......................... $2,234 $1,215 $1,160
====== ====== ======
</TABLE>
The above expenditures do not include non-cash expenditures of $48 million,
$140 million, and $178 million in 1996, 1995, and 1994, respectively,
primarily relating to directly financed equipment acquisitions, nor do they
include equipment financed through operating leases (principally, locomotives
and rolling stock). BNSF expects 1997 capital expenditures for BNSF Railway to
approximate $1.85 billion. Approximately $1.1 billion of these expenditures
will be for maintaining productive capacity of the existing route structures.
The remainder will be spent on acquisition of new equipment, including at
least 180 locomotives, and capacity expansion projects throughout the system
including the Powder River Basin and the Pacific Northwest.
General Electric Company ("GE") and the Electro-Motive Division of General
Motors Corporation ("EMD") perform locomotive maintenance for BNSF Railway
under various maintenance agreements that covered approximately 1,530
locomotives as of December 31, 1996. Additionally, BNSF Railway has a similar
agreement with Boise Locomotive Corporation ("Boise") that provides for the
overhaul of 277 locomotives and the maintenance for each of the locomotives
for a period of eight years following its overhaul. The agreements with GE,
EMD, and Boise require the work to be done at BNSF Railway's facilities with
BNSF Railway employees.
The majority of maintenance of way expenditures for track have been for rail
and tie refurbishment and resurfacing. The extent of the BNSF Railway track
maintenance program (representing combined BNRR and ATSF amounts for all
periods) is depicted in the following chart:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER
31,
--------------------
1996 1995 1994
------ ------ ------
<S> <C> <C> <C>
Track miles of rail laid (1)............................ 1,139 945 1,010
Cross ties inserted (in thousands) (1).................. 3,768 2,974 2,879
Track resurfaced miles.................................. 12,033 11,088 11,055
</TABLE>
- --------
(1) Includes both maintenance of existing route system and expansion projects.
BNSF Railway anticipates that the 1997 track maintenance of way program,
together with expansion projects, will result in the installation of
approximately 1,000 track miles of rail, the replacement of about 3.5 million
ties, and the resurfacing of approximately 12,000 miles of track.
PROPERTY AND FACILITIES
BNSF Railway operates facilities and equipment for maintenance of track,
locomotives and freight cars. It also owns or leases other equipment to
support rail operations, such as highway trailers, containers and vehicles.
Support facilities for rail operations include yards and terminals throughout
its rail network, system
3
<PAGE>
locomotive shops to perform continuous locomotive servicing and maintenance,
centralized network operations centers for train dispatching and network
operations monitoring and management in Fort Worth, Texas, and Schaumburg,
Illinois, computers, telecommunications equipment, signal systems, and other
support systems. Transfer facilities are maintained for rail-to-rail as well
as intermodal transfer of containers, trailers and other freight traffic.
These include 39 major intermodal hubs located across the system and nine
intermodal hub centers off-line used in connection with haulage agreements
with other railroads. BNSF Railway's largest intermodal facilities in terms of
volume are Hobart Yard (Los Angeles), Corwith Yard (Chicago), Willow Springs
(Illinois), Chicago Hub Center (Cicero, Illinois), Alliance (Texas), Seattle
International Gateway (SIG), and Tacoma, with approximately 707,500, 535,900,
440,000, 436,000, 292,900, 220,500, and 192,300 lifts, respectively, in 1996.
BNSF Railway also owns 28 automotive distribution facilities where automobiles
are loaded or unloaded from multi-level rail cars and serves eight port
facilities. Argentine Yard in Kansas City, Kansas, Barstow Yard in Barstow,
California, Northtown Yard in Minneapolis, Minnesota and Murray Yard in Kansas
City, Missouri are the largest freight car classification yards.
In December 1996, BNSF acquired Washington Central Railroad Company, Inc.
for shares of BNSF common stock, and BNSF Railway now operates over Washington
Central's route between Kennewick, Washington, an interchange point on BNSF
Railway, and Cle Elum, Washington. This acquisition, and BNSF Railway's
rehabilitation of the 229-mile Stampede Pass line between Pasco and Auburn,
Washington, provides BNSF Railway with a third route linking Central
Washington with the Pacific Coast. During 1996, BNSF Railway also disposed of
approximately 2,000 route miles of secondary lines.
A substantial portion of all railroad property, real or personal, owned by
BNSF Railway is subject to liens securing, as of December 31, 1996,
approximately $544 million of mortgage bonds. On January 1, 1997,
approximately $77 million of this mortgage debt matured and was paid. Certain
locomotives and rolling stock of BNSF Railway are subject to equipment
obligations, as referred to in Note 10 to the consolidated financial
statements on page 30 of BNSF's 1996 Annual Report to Shareholders, which
information is hereby incorporated by reference.
EMPLOYEES AND LABOR RELATIONS
Productivity as measured by revenue ton miles per employee has risen steadily
in the last three years, while compensation and benefits expense per revenue
ton mile has declined, as shown in the table below (represents combined BNRR
and ATSF operating statistics for all periods):
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
-----------------
1996 1995 1994
----- ----- -----
<S> <C> <C> <C>
Thousand revenue ton-miles/average number of employees.... 9,398 8,715 7,887
Compensation and benefits expense/thousand revenue ton-
miles.................................................... $6.23 $6.78 $7.27
</TABLE>
Labor unions represent approximately 88 percent of BNSF Railway employees
under collective bargaining agreements with 13 different labor organizations.
BNRR, ATSF and other major railroads were actively involved in industry-wide
labor contract negotiations beginning in late 1994. Through this process,
wages, health and welfare benefits, work rules and other issues have now been
negotiated for all BNSF Railway union-represented employees. On February 26,
1997, BNSF Railway reached an agreement with the approximately 425 employees
represented by the American Train Dispatchers Department of the Brotherhood of
Locomotive Engineers, to bring the 1995 round of labor contract negotiations
to a close.
The new collective bargaining agreements will remain in effect through at
least December 31, 1999 and until new agreements are reached or the Railway
Labor Act's procedures are exhausted. The new collective bargaining agreements
include provisions for retroactive and prospective wage increases, signing
bonuses and lump-sum payments. Throughout the negotiation process, BNSF
accrued for anticipated retroactive elements of the contract settlements, and
these agreements therefore did not have a material effect on BNSF's 1996
results of operations.
4
<PAGE>
Railroad industry personnel are covered by the Railroad Retirement System
instead of Social Security. BNSF Railway's contributions under the Railroad
Retirement System are approximately triple those in industries covered by
Social Security.
Railroad industry personnel are also covered by the Federal Employers'
Liability Act ("FELA") rather than by state workers' compensation systems.
FELA is a fault-based system, with compensation for injuries settled by
negotiation and litigation, not subject to specific statutory limitations on
the amount of recovery. By contrast, most other industries are covered under
state administered no-fault plans with standard compensation schedules. BNSF
Railway believes it has adequate reserves for its FELA claims. However, the
future costs of FELA claims are uncertain and such costs could be
significantly higher in the future.
BUSINESS MIX
In serving the Midwest, Pacific Northwest and the Western, Southwestern, and
Southeastern regions of the country, BNSF Railway transports a range of
commodities derived from manufacturing, agricultural, and natural resource
industries. Accordingly, its financial performance is influenced by, among
other things, general and industry economic conditions at the international,
national, and regional levels.
Major markets served directly by BNSF Railway include Albuquerque, Billings,
Birmingham, Cheyenne, Chicago, Corpus Christi, Dallas, Denver, Des Moines,
Duluth/Superior, Fargo/Moorhead, Fort Worth, Houston, Kansas City, Lincoln,
Little Rock, Los Angeles, Memphis, Mobile, New Orleans, Oklahoma City, Omaha,
Pensacola, Phoenix, Portland, Reno, Salt Lake City, San Antonio, the San
Francisco Bay area, St. Louis, St. Paul/Minneapolis, Seattle, Spokane,
Springfield (Missouri), Tacoma, Tulsa, Wichita, Vancouver (British Columbia),
and Winnipeg (Manitoba). Other major cities are served through 24 Intermodal
Market Extension ("IMX") terminals located at various off-line points. Major
ports served include Galveston, Houston, Long Beach, Los Angeles, New Orleans,
Mobile, Portland, Richmond (Oakland), San Diego, Seattle, Duluth/Superior,
Tacoma and Vancouver (British Columbia).
As a result of agreements and conditions stemming from the merger of the
Union Pacific and Southern Pacific railroads, BNSF Railway gained new access
to the growing Mexican market. Previously, BNSF reached the United
States/Mexico crossings of Eagle Pass and El Paso, Texas and San Diego,
California. As a result of the UP/SP merger, BNSF Railway now also reaches
Brownsville, Texas and, through connection with the Texas Mexican Railway
Company, the major border crossing point at Laredo, Texas.
In 1996, approximately one quarter of revenues were derived from Intermodal
traffic and another quarter were derived from the transportation of Coal.
About 14 percent of 1996 revenues reflected the transportation of Agricultural
Commodities. The transportation of commodities in the areas serviced by
Chemicals, Forest Products, Consumer and Food Products, Metals, Automotive,
and Minerals and Ores, accounted for the rest of 1996 revenues.
Intermodal. The Intermodal freight business consists of the hauling of
freight containers or truck trailers by combinations of water, rail, or motor
carriers. The intermodal business is highly service-driven, and in many cases
motor carriers and railroads jointly market intermodal service. The first such
joint intermodal arrangement was Quantum, through which BNSF Railway and J. B.
Hunt Transport provide customers full service, customized door-to-door
transportation (truck and rail), with a common communication system and
integrated billing at a single rate.
In 1994, major national Less-Than-Truckload ("LTL") carriers and the
Teamsters union signed a new National Master Freight Agreement that allows the
LTL carriers to shift up to 28 percent of their total line-haul miles to
intermodal service. BNSF Railway is a major beneficiary of this service-
sensitive traffic, and it provides transportation services to major LTL
carriers including Yellow Freight, Roadway Express, and Consolidated
Freightways.
5
<PAGE>
Intermodal 1996 results include revenue from four types of business:
. Direct Marketing. Direct marketing efforts resulted in approximately 33
percent of total intermodal revenue. These center around traffic contracted
from United Parcel Service and the United States Postal Service, and service
for nationwide LTL carriers.
. Truckload. Truckload traffic represented approximately 14 percent of total
intermodal revenue. The joint service arrangement with J.B. Hunt, referred to
as Quantum, represented the largest truckload component, while Schneider
National was the next largest.
. Intermodal Marketing Companies. Approximately 25 percent of total
intermodal revenue was generated through intermodal marketing companies,
primarily shipper agents and consolidators.
. International. International business consists primarily of traffic from
steamship companies and accounted for approximately 28 percent of intermodal
revenues.
Coal. Based on carloadings and tons hauled, BNSF Railway is the largest
transporter of western low-sulfur coal in the United States. Over 90 percent
of BNSF Railway's coal traffic originated in the Powder River Basin of Wyoming
and Montana during the three years ended December 31, 1996. These coal
shipments were destined for coal-fired electric generating stations located
primarily in the North Central, South Central and Mountain regions of the
United States with smaller quantities exported.
BNSF Railway also handles increasing amounts of low-sulfur coal from the
Powder River Basin for delivery to markets in the eastern and southeastern
portion of the United States. The low-sulfur coal from the Powder River Basin
is abundant, inexpensive to mine and clean-burning. Because the Clean Air Act
of 1990 requires power plants to reduce harmful emissions either by burning
coal with a lower sulfur content or by installing expensive scrubbing units,
opportunities for increased shipments of this low-sulfur coal still exist.
Other coal shipments originate principally in Wyoming, Colorado, and New
Mexico on the lines of the former ATSF and other rail carriers. These
shipments are moved to electrical generating stations and industrial plants in
the Midwest and Southwest.
Agricultural Commodities. Agricultural Commodities include barley, corn,
wheat, soybeans, oils, feeds, flour and mill products, specialty grains,
malts, and milo. The BNSF Railway system is strategically located to serve the
Midwest and Great Plains grain-producing regions where BNSF Railway serves
most major terminal, storage, feeding and food-processing locations.
Additionally, BNSF Railway has access to major export markets in the Pacific
Northwest, western Great Lakes and Texas Gulf regions.
Chemicals. The Chemicals business is comprised of fertilizer, petroleum and
chemical commodities. Chemicals and plastics resins are transported for
industrial and agricultural use. Industrial chemicals and plastics resins are
used by the automotive, housing, and packaging industries, as well as for
feedstocks for other chemical and plastic products. Access to significant
additional chemicals producers along the Louisiana and Texas Gulf Coasts was
gained as a result of the agreement and conditions resulting from the merger
of the Union Pacific and Southern Pacific railroads. Agricultural minerals
include sulphur that generally moves to the Gulf Coast and from there via
vessels to Florida and overseas markets for use in making phosphatic
fertilizers. Potash is transported to domestic markets and to export points
for markets in Canada, Mexico, and overseas.
Forest Products. The primary commodities in Forest Products are lumber,
plywood, oriented strand board, paper products, pulpmill feedstock, and wood
pulp. Based on carloadings and tonnage hauled, BNSF Railway is the largest
rail transporter of forest products in the United States. Commodity origins
are primarily from the Pacific Northwest, upper Midwest, and the Southeast for
shipment mainly into domestic markets. Industries served include construction,
furniture, photography, publishing, newspaper, and industrial packaging.
6
<PAGE>
Consumer and Food Products. Beverages, canned goods, and perishables are the
principal food commodities moved by BNSF Railway. Other consumer products
handled include sugars and sweeteners, cotton, salt, rubber and tires,
machinery, aircraft parts, military and miscellaneous boxcar shipments.
Shipments of waste, ranging from municipal waste to contaminated soil, move to
landfills and reclamation centers across the country. Distribution services,
including transloading and warehousing services, are also offered. A truck-
competitive transportation product in tank containers for customers shipping
specialty chemicals, other liquids and dry material is also offered.
Metals. The Metals business includes virtually all of the commodities
included in or resulting from the production of steel. Taconite, an iron ore
derivative produced in northern Minnesota, scrap steel, and coal coke are BNSF
Railway's primary input products, while finished steel products range from
structural beams and steel coils to wire and nails. BNSF Railway also hauls
both ferrous and non-ferrous products including recyclable metals. BNSF
Railway links the integrated steel mills in the East with fabricators in the
West and Southwest. Service is also provided to various mini-mills in the
Southwest that feed rebar, beams, and coiled rod to the construction industry.
Various non-ferrous products such as copper, lead, and aluminum are
transported for the beverage, automotive, and telecommunications industries.
Automotive. The Automotive group is responsible for both assembled motor
vehicles and shipments of vehicle parts to numerous destinations throughout
the Midwest, Southwest, West and Pacific Northwest.
Minerals and Ores. Commodities in this group include clays, sands, cements,
aggregates, sodium compounds and other industrial minerals. Both the oil and
the construction industries are serviced. Industrial minerals include various
mined and processed commodities such as cement and aggregates (construction
sand, gravel and crushed stone) that generally move to domestic markets for
use in general construction and public work projects, such as highway
projects. Borates and clays move to domestic points as well as to export
markets primarily through West Coast ports. Sodium compounds, primarily soda
ash, is moved to domestic markets for use in the manufacturing of glass and
other industrial products. Sand is utilized in the manufacturing of glass and
for use in foundry and oil drilling applications.
Freight Statistics. The following tables set forth certain freight
statistics relating to rail operations for the periods indicated. Amounts
shown represent combined BNRR and ATSF results for all periods; certain
amounts have been reclassified to reflect changes in the business groups and
to conform to current year presentation.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1996 1995 1994
------- ------- -------
<S> <C> <C> <C>
Revenue ton-miles (millions)......................... 411,059 397,902 360,605
Freight revenue per thousand revenue ton-miles....... $19.82 $20.11 $20.84
Average haul per ton (miles)......................... 875 864 821
</TABLE>
7
<PAGE>
REVENUES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER
31,
--------------------
1996 1995 1994
------ ------ ------
(IN MILLIONS)
<S> <C> <C> <C>
Intermodal............................................. $2,088 $2,000 $1,956
Coal................................................... 1,973 1,962 1,907
Agricultural Commodities............................... 1,170 1,290 955
Chemicals.............................................. 765 712 701
Forest Products........................................ 555 557 569
Consumer and Food Products............................. 469 486 481
Metals................................................. 413 397 356
Automotive............................................. 397 398 380
Minerals and Ores...................................... 319 313 302
------ ------ ------
Total Freight Revenue.................................. 8,149 8,115 7,607
Other Revenue.......................................... 38 35 50
------ ------ ------
Total Revenues....................................... $8,187 $8,150 $7,657
====== ====== ======
CARS/UNITS
<CAPTION>
YEAR ENDED DECEMBER
31,
--------------------
1996 1995 1994
------ ------ ------
(IN THOUSANDS)
<S> <C> <C> <C>
Intermodal............................................. 2,571 2,527 2,465
Coal................................................... 1,854 1,878 1,847
Agricultural Commodities............................... 585 664 578
Chemicals.............................................. 449 435 431
Forest Products........................................ 334 347 357
Consumer and Food Products............................. 309 332 337
Metals................................................. 391 399 370
Automotive............................................. 250 264 238
Minerals and Ores...................................... 249 257 246
------ ------ ------
Total Cars/Units..................................... 6,992 7,103 6,869
====== ====== ======
AVERAGE REVENUE PER CAR/UNIT
<CAPTION>
YEAR ENDED DECEMBER
31,
--------------------
1996 1995 1994
------ ------ ------
<S> <C> <C> <C>
Intermodal............................................. $ 812 $ 791 $ 794
Coal................................................... 1,064 1,045 1,032
Agricultural Commodities............................... 2,000 1,943 1,652
Chemicals.............................................. 1,704 1,637 1,626
Forest Products........................................ 1,662 1,605 1,594
Consumer and Food Products............................. 1,518 1,464 1,427
Metals................................................. 1,056 995 962
Automotive............................................. 1,588 1,508 1,597
Minerals and Ores...................................... 1,281 1,218 1,228
------ ------ ------
Average Revenue Per Car/Unit....................... $1,165 $1,142 $1,107
====== ====== ======
</TABLE>
8
<PAGE>
GOVERNMENT REGULATION AND LEGISLATION
Rail operations are subject to the regulatory jurisdiction of the Surface
Transportation Board of the United States Department of Transportation
("DOT"), the Federal Railroad Administration of DOT, the Occupational Safety
and Health Administration ("OSHA"), and state regulatory agencies. The Surface
Transportation Board, which is the successor to the Interstate Commerce
Commission ("ICC"), has jurisdiction over certain rates, routes, and services,
the extension, sale, or abandonment of rail lines, and consolidation or merger
with, or acquisition of control of, rail common carriers. DOT and OSHA have
jurisdiction under several federal statutes over a number of safety and health
aspects of rail operations. State agencies regulate some aspects of rail
operations with respect to health and safety in areas not otherwise preempted
by federal law.
BNSF Railway's rail operations, as well as those of its competitors, are
subject to extensive federal, state and local environmental regulation. These
laws cover discharges to waters, air emissions, toxic substances, and the
generation, handling, storage, transportation, and disposal of waste and
hazardous materials. This regulation has the effect of increasing the cost and
liabilities associated with rail operations. Environmental risks are also
inherent in rail operations which frequently involve transporting chemicals
and other hazardous materials.
The railroad industry, including BNSF Railway, will become subject to future
requirements regulating air emissions from diesel locomotives that may
increase operating and capital costs. The United States Environmental
Protection Agency ("EPA") issued in early 1997 proposed regulations nationally
applicable to new locomotive engines and certain engines remanufactured after
1999. Final regulations are to be promulgated by the end of the year. It is
anticipated that these regulations will be effective for locomotive engines
installed after 1999 and through 2010. Under some interpretations of federal
law, older locomotive engines may be regulated by states based on standards
and procedures which the State of California ultimately adopts. At this time
it is unknown whether California will adopt any locomotive emission standards.
Many of BNSF Railway's land holdings are and have been used for industrial
or transportation-related purposes or leased to commercial or industrial
companies whose activities may have resulted in discharges onto the property.
As a result, BNSF Railway is now subject and will from time to time continue
to be subject to environmental cleanup and enforcement actions. In particular,
the federal Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA"), also known as the "Superfund" law, generally imposes joint and
several liability for cleanup and enforcement costs, without regard to fault
or the legality of the original conduct, on current and former owners and
operators of a site. Accordingly, BNSF Railway may be responsible under CERCLA
and other federal and state statutes for all or part of the costs to clean up
sites at which certain substances may have been released by BNSF Railway, its
current lessees, former owners or lessees of properties, or other third
parties. For further discussion, reference is made to Note 13 to the
consolidated financial statements on pages 31 and 32 of BNSF's 1996 Annual
Report to Shareholders, which information is hereby incorporated by reference.
COMPETITION
The business environment in which BNSF Railway operates remains highly
competitive. Depending on the specific market, deregulated motor carriers,
other railroads and river barges exert pressure on various price and service
levels. The presence of advanced, high service truck lines with expedited
delivery, subsidized infrastructure and minimal empty mileage continues to
affect the market for non-bulk, time sensitive freight. The potential
expansion of longer combination vehicles could further encroach upon markets
traditionally served by railroads. In order to remain competitive, BNSF
Railway and other railroads continue to develop and implement operating
efficiencies to improve productivity.
As railroads streamline, rationalize and otherwise enhance their franchises,
competition among rail carriers intensifies. BNSF Railway's primary rail
competitor in the western region of the United States is
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<PAGE>
Union Pacific Railroad Company ("UP"), which now includes the former Southern
Pacific Transportation Company ("SP") and Chicago & North Western
Transportation Company ("C&NW"). Other Class I railroads and numerous regional
railroads and motor carriers also operate in parts of the same territories
served by BNSF Railway. Coal, one of BNSF Railway's primary commodities, has
experienced significant pressure on rates due to competition from the joint
effort of C&NW/UP and from BNSF Railway's effort to penetrate new markets.
The Surface Transportation Board approved the proposed common control and
merger of rail carriers controlled by UP and SP in its written decision dated
August 12, 1996, and the transaction was consummated on September 11, 1996. As
a condition of the merger, the STB imposed the provisions of the rights
agreement between BNSF Railway and UP/SP which grants rights to BNSF Railway
to approximately 4,000 miles of track and requires the purchase by BNSF
Railway from UP/SP of more than 335 miles of track for $150 million. Approval
of the UP/SP transaction created an enhanced competitor to BNSF Railway. The
Board's decision also provides BNSF Railway with greater access to Gulf Coast
and West Coast markets and improves its route structure. BNSF Railway has
commenced operations and is handling rail traffic utilizing the rights
obtained from UP/SP.
BNSF is monitoring proposals involving the possible merger with or other
disposition of Consolidated Rail Corporation (Conrail) between CSX Corporation
and Norfolk Southern Corporation and will evaluate any definitive agreement
and related filings with the Surface Transportation Board to determine the
impact, if any, on BNSF Railway. Conrail, CSX and Norfolk Southern operate the
three largest rail systems in the eastern United States.
BNSF is also studying the ongoing privatization of the Mexican rail network.
The northeastern Mexico rail concession has been awarded to a group including
Kansas City Southern Railway; the northwestern Mexico rail concession is now
going through the bid process, with a successful bidder to be announced by
mid-1997.
PIPELINE INVESTMENT
Santa Fe Pacific Pipelines, Inc. ("SFP Pipelines"), an indirect, wholly-
owned subsidiary of BNSF, serves as the general partner of Santa Fe Pacific
Pipeline Partners, L.P. (the "Partnership"), a Delaware master limited
partnership formed in 1988 to acquire and operate the refined petroleum
products pipeline business of SFP. SFP Pipelines owns a two percent interest
as the Partnership's general partner and an approximate 42 percent interest as
limited partner. As general partner, SFP Pipelines is entitled to receive two
percent of all amounts available for distribution by the Partnership and also
an additional incentive depending upon the level of cash distributions paid to
holders of limited partner interests in the Partnership ("Partnership Units").
BNSF accounts for its interest in the Partnership on the equity basis.
In September 1990, SFP Pipeline Holdings, Inc., an indirect, wholly-owned
subsidiary of BNSF, issued $219 million principal amount of Variable Rate
Exchangeable Debentures due 2010 (the "Holdings Debentures") at an eight
percent discount. The Holdings Debentures are exchangeable under certain
circumstances at the option of the holders upon the first to occur of certain
specified events, or final maturity, for substantially all of the Partnership
Units that are owned by SFP Pipelines. The interest payable with respect to
the Holdings Debentures for a particular quarter is equal to the greater of
(i) the distributions of cash from operations declared by the Partnership on
the Partnership Units for which such Holdings Debentures are exchangeable and
(ii) two percent of the weighted average unpaid balance of such Holdings
Debentures outstanding during such quarter, provided that in no event shall
the amount of interest paid on the Holdings Debentures exceed an average
annual rate of 16 percent since their date of issuance.
The Partnership is one of the largest independent pipeline common carriers
of refined petroleum products in the United States, and the largest in the
western United States, in terms of product deliveries,
10
<PAGE>
barrel miles, and pipeline mileage, with approximately 3,300 miles of pipeline
serving six states. The Partnership transports refined petroleum products,
including gasoline, diesel fuel, and commercial and military jet fuel,
primarily for major petroleum companies, independent refiners, the United
States military, and marketers and distributors of such products. The
Partnership also operates 14 truck loading terminals and provides pipeline
service to 40 customer-owned terminals, three commercial airports, and 11
military bases. The Partnership shipped 365.4 million barrels in 1996, up from
354.3 million barrels in 1995.
Substantially all of the Partnership's pipeline operations are common
carrier operations that are subject to federal or state rate regulation. The
Federal Energy Regulatory Commission (FERC) exercises economic regulatory
jurisdiction over interstate shipments through the Partnership's system. For a
description of certain FERC proceedings challenging certain of the
Partnership's rates and seeking refunds and prospective rate reductions, see
the section entitled "East Line Civil Litigation and FERC Proceedings" under
Item 3, Legal Proceedings, in the Partnership's Annual Report on Form 10-K for
the year ended December 31, 1996, which section is hereby incorporated by
reference. Intrastate shipments are subject to economic regulation by the
California Public Utilities Commission.
ITEM 3. LEGAL PROCEEDINGS
Set forth below is a description of certain legal proceedings involving BNSF
and its subsidiaries.
WHEAT AND BARLEY TRANSPORTATION RATES
In September 1980, a class action lawsuit was filed against BNSF Railway in
United States District Court for the District of Montana ("Montana District
Court") challenging the reasonableness of BNSF Railway export wheat and barley
rates. The class consists of Montana grain producers and elevators. The
plaintiffs sought a finding that BNSF Railway single car export wheat and
barley rates for shipments moving from Montana to the Pacific Northwest were
unreasonably high and requested damages in the amount of $64 million. In March
1981, the Montana District Court referred the rate reasonableness issue to the
ICC. Subsequently, the state of Montana filed a complaint at the ICC
challenging BNSF Railway's multiple car rates for Montana wheat and barley
movements occurring after October 1, 1980.
The ICC issued a series of decisions in this case from 1988 to 1991. Under
these decisions, the ICC applied a revenue to variable cost test to the rates
and determined that BNSF Railway owed $9,685,918 in reparations plus interest.
In its last decision, dated November 26, 1991, the ICC found BNSF Railway's
total reparations exposure to be $16,559,012 through July 1, 1991. The ICC
also found that BNSF Railway's current rates were below a reasonable maximum
and vacated its earlier rate prescription order.
BNSF Railway appealed to the United States Court of Appeals for the District
of Columbia Circuit ("D.C. Circuit") those portions of the ICC's decisions
concerning the post-October 1, 1980 rate levels. BNSF Railway's primary
contention on appeal was that the ICC erred in using the revenue to variable
cost rate standard to judge the rates instead of Constrained Market
Pricing/Stand Alone Cost principles. The limited portions of decisions that
cover pre-October 1, 1980 rates were appealed to the Montana District Court.
On March 24, 1992, the Montana District Court dismissed plaintiffs' case as
to all aspects other than those relating to pre-October 1, 1980 rates. On
February 9, 1993, the D.C. Circuit served its decision regarding the appeal of
the several ICC decisions in this case. The court held that the ICC did not
adequately justify its use of the revenue to variable cost standard as BNSF
Railway had argued and remanded the case to the ICC for further administrative
proceedings.
On July 22, 1993, the ICC served an order in response to the D.C. Circuit's
February 9, 1993 decision. In its order, the ICC stated it would use the
Constrained Market Pricing/Stand-Alone Cost principles in assessing the
reasonableness of BNSF Railway wheat and barley rates moving from Montana to
Pacific Coast ports from 1978 forward. The ICC assigned the case to the Office
of Hearings to develop a procedural
11
<PAGE>
schedule. On October 28, 1994, plaintiffs filed their opening evidence arguing
that the revenue received by BNSF Railway exceeded the stand alone costs of
transporting that traffic and that BNSF Railway rates were unreasonably high.
BNSF Railway filed its evidence March 29, 1995, showing that the stand alone
costs of transporting the traffic exceeded the revenue derived by BNSF Railway
on that traffic and that consequently, its rates were not unreasonably high.
The parties filed briefs simultaneously on August 16, 1995, and the proceeding
awaits decision by the Surface Transportation Board, successor to the ICC.
COAL TRANSPORTATION CONTRACT LITIGATION
On April 26, 1991, an action was filed against BNSF Railway in the 102nd
Judicial District Court for Bowie County, Texas, seeking a reduction of the
transportation rates required to be paid under two contracts (Southwestern
Electric Power Company v. Burlington Northern Railroad Company, No. D-102-CV-
91-0720). The plaintiff, Southwestern Electric Power Company ("SWEPCO"), was
challenging the contract rates for transportation of coal to its electric
generating facilities at Cason, Texas, and Flint Creek, Arkansas. SWEPCO
contended that productivity gains achieved by BNSF Railway constituted unusual
economic conditions giving rise to a "gross inequity" because BNSF Railway's
costs of providing service have been reduced over the contracts' terms. On
August 2, 1994, plaintiff amended its complaint to further allege that BNSF
Railway had been unjustly enriched by retaining differences between the rates
actually charged and those that SWEPCO alleged should have been charged.
SWEPCO sought both prospective rate relief and recovery of alleged past
overcharges.
BNSF Railway's primary contention was that both parties anticipated
productivity gains in the rail industry when negotiating the contracts and
agreed that BNSF Railway would retain most of its productivity gains. BNSF
Railway further contended that there was no agreement that transportation
rates paid by SWEPCO would be based on BNSF Railway's cost of providing
service.
On November 18, 1994, the jury rendered a verdict denying plaintiff's
request for prospective rate relief and that plaintiff take nothing on its
principal claims of "gross inequity." However, BNSF Railway was assessed
damages approximating $56 million relating to plaintiff's alternative claim of
unjust enrichment. On January 20, 1995, the trial court rendered a judgment on
the verdict in an amount approximating $74 million, which included attorneys'
fees and interest. The judgment further awarded post-judgment interest at 10
percent per annum and issued declaratory orders pertaining to the two
contracts. BNSF Railway filed its notice of appeal in the case on February 17,
1995 and posted a bond staying enforcement of the judgment in the Court of
Appeals for the Sixth Court of Appeals District of Texas, Texarkana, Texas
(Burlington Northern Railroad Company v. Southwestern Electric Power Company,
No. 06-95-00024-CV). By decision dated April 30, 1996, the Court of Appeals
reversed the judgment of the trial court and rendered judgment in favor of
BNSF Railway. SWEPCO was assessed costs of appeal. SWEPCO has been denied two
motions for rehearing before the Court of Appeals. On October 14, 1996, SWEPCO
applied for discretionary review of the decision by the Texas Supreme Court.
ENVIRONMENTAL PROCEEDINGS
BNSF Railway has been advised that it is a target of a Grand Jury
investigation in the United States District Court for the Eastern District of
Missouri with respect to former railcar cleaning activities conducted by
independent contractors at Cherryville, Missouri. The proceeding relates to
alleged violations of federal environmental protection statutes with respect
to lead contamination at several sites in the Cherryville area. In addition,
BNSF Railway has received personal injury claims from certain individuals
formerly residing at or near some of these sites. The Missouri Department of
Natural Resources ("DNR") also is investigating the matter with respect to
possible violations of state environmental protection laws and has indicated
that it may seek a civil penalty from BNSF Railway. BNSF Railway and another
potentially responsible party had previously prepared investigation and
remediation plans in conjunction with the DNR. BNSF Railway modified the plans
and is expediting a response and implementing remediation with DNR approval.
12
<PAGE>
On December 18, 1995, the State of Illinois filed a Complaint captioned
People of the State of Illinois v. Burlington Northern Railroad Company,
Beazer East, Inc. and Koppers Industries, Inc. (PCB No. 96-132) before the
Illinois Pollution Control Board against BNSF Railway, Beazer East, Inc. and
Koppers Industries, Inc. alleging violations of the Illinois Environmental
Protection Act with respect to a facility in Galesburg, Illinois. This
facility is not operated by BNSF Railway. The proceeding may result in
monetary sanctions in excess of $100,000. BNSF Railway and Beazer East, Inc.
have made an offer to the State of Illinois to settle this matter.
On December 30, 1996, BNSF Railway was named a defendant in a lawsuit by the
Wisconsin Department of Natural Resources (State of Wisconsin v. Burlington
Northern Railroad Company, Case No. 96 CV403, Circuit Court, Douglas County)
in connection with two separate matters in Superior, Wisconsin. One of the
matters involves the alleged obligation to close a wastewater holding pond
located on property which BNSF Railway does not own. The State alleges that
BNSF Railway is an owner or operator of the pond and is subject to the
obligation because of its discharge of treated wastewater into the pond. The
other matter relates to petroleum impacts to property formerly owned by BNSF
Railway. The current owner discovered the petroleum and debris when excavating
the property. It is possible that BNSF Railway will be required to pay
monetary sanctions to the State in excess of $100,000 in connection with the
resolution of these two matters.
BNSF Railway has been issued a Notice of Violation by the Texas Natural
Resource Conservation Commission with respect to the alleged failure to timely
file wastewater discharge reports and other deficiencies at a facility in
Silsbee, Texas. The State has made a demand for penalties in excess of
$100,000, calling for the correction of alleged recordkeeping deficiencies and
a study of the ditch receiving the permitted discharges.
MERGER-RELATED LITIGATION
Numerous complaints were filed arising out of the Agreement and Plan of
Merger dated June 29, 1994, as amended, between BNI and SFP. On June 30, 1994,
shortly after announcement of the proposed BNI-SFP merger ("Merger"), two
purported stockholder class action suits were filed in the Court of Chancery
of the State of Delaware (Miller v. Santa Fe Pacific Corporation, C.A. No.
13587; Cosentino v. Santa Fe Pacific Corporation, C.A. No. 13588). On July 1,
1994, two additional purported stockholder class action suits were filed in
the Court of Chancery of the State of Delaware (Fielding v. Santa Fe Pacific
Corporation, C.A. No. 13591; Wadsworth v. Santa Fe Pacific Corporation, C.A.
No. 13597).
The actions named as defendants SFP, the individual members of the SFP Board
of Directors, and BNI. In general, the actions variously alleged that SFP's
directors breached their fiduciary duties to the stockholders by agreeing to
the proposed merger for allegedly "grossly inadequate" consideration in light
of recent operating results of SFP, recent trading prices of SFP's common
stock and other alleged factors, by allegedly failing to take all necessary
steps to ensure that stockholders will receive the maximum value realizable
for their shares (including allegedly failing to actively pursue the
acquisition of SFP by other companies or conducting an adequate "market
check"), and by allegedly failing to disclose to stockholders the full extent
of the future earnings potential of SFP, as well as the current value of its
assets. The Miller and Fielding cases further alleged that the proposed Merger
was unfairly timed and structured and, if consummated, would allegedly
unfairly deprive the stockholders of standing to pursue certain pending
stockholder derivative litigation. Plaintiffs also alleged that BNI was
responsible for aiding and abetting the alleged breach of fiduciary duty
committed by the SFP Board. The actions sought certification of a class action
on behalf of SFP's stockholders. In addition, the actions sought injunctive
relief against consummation of the Merger and, in the event that the Merger
was consummated, the rescission of the Merger, an award of compensatory or
rescissory damages and other damages, including court costs and attorneys'
fees, an accounting by defendants of all profits realized by them as a result
of the Merger, and various other forms of relief.
On October 6, 1994, shortly after Union Pacific Corporation ("UPC") issued a
press release in which it announced a proposal for UPC to acquire SFP (the
"UPC Proposal"), plaintiffs in the four lawsuits described
13
<PAGE>
above filed in the Court of Chancery of the State of Delaware a Consolidated
Amended Complaint (Miller v. Santa Fe Pacific Corporation, C.A. No. 13587). In
their Consolidated Amended Complaint, plaintiffs repeated the allegations
contained in their earlier lawsuits and further alleged that, in light of the
UPC Proposal, SFP's directors had breached their fiduciary duties by failing
to fully inform themselves about and to adequately explore available
alternatives to the merger with BNI, including the alternative of a merger
transaction with UPC, and by failing to fully inform themselves about the
value of SFP. The Consolidated Amended Complaint sought the same relief sought
in plaintiffs' earlier lawsuits and, in addition, requested that SFP's
directors be ordered to explore alternative transactions and to negotiate in
good faith with all interested persons, including UPC.
Also, on October 6, 1994, five additional purported stockholder class action
suits relating to SFP's proposed participation in the Merger with BNI were
filed in the Court of Chancery of the State of Delaware (Weiss v. Santa Fe
Pacific Corporation, C.A. No. 13779; Lifshitz v. Krebs, C.A. No. 13780; Stein
v. Santa Fe Pacific Corporation, Lewis v. Santa Fe Pacific Corporation, C.A.
No. 13783; Abramson v. Lindig, C.A. No. 13784). On October 7, 1994, three more
purported stockholder class action suits relating to SFP's proposed
participation in the Merger with BNI were filed in the Court of Chancery of
the State of Delaware (Graulich v. Santa Fe Pacific Corporation, C.A. No.
13786; Anderson v. Santa Fe Pacific Corporation, C.A. No. 13787; Green v.
Santa Fe Pacific Corporation, C.A. No. 13788). All of these lawsuits named as
defendants SFP and the individual members of the SFP Board of Directors; the
Lifshitz case further named BNI as a defendant. In general, these actions
variously alleged that, in light of SFP's recent operating results and the UPC
Proposal, SFP's directors breached their fiduciary duties to stockholders by
purportedly not taking the necessary steps to ensure that SFP's stockholders
would receive "maximum value" for their shares of SFP stock, including
purportedly refusing to negotiate with UPC or to "seriously consider" the UPC
Proposal and failing to announce any active auction or open bidding
procedures. The actions generally sought relief that is materially identical
to the relief sought in the Miller case, and in addition sought entry of an
order requiring SFP's directors to immediately undertake an evaluation of
SFP's worth as a merger/acquisition candidate and to establish a process
designed to obtain the highest possible price for SFP, including taking steps
to "effectively expose" SFP to the marketplace in an effort to create an
"active auction" in SFP. The Weiss case further sought entry of an order
enjoining SFP's directors from implementing any poison pill or other device
designed to thwart the UPC Proposal or any other person's proposal to acquire
SFP.
The Anderson lawsuit was subsequently withdrawn. On October 14, 1994, the
Chancery Court entered an order consolidating the remaining 11 purported
stockholder class action suits under the heading In Re Santa Fe Pacific
Corporation Shareholder Litigation, C.A. No. 13587 (the "Shareholder
Litigation").
On October 26, 1994, BNI filed a Motion to Dismiss the Consolidated and
Amended Complaint.
On March 6, 1995, plaintiffs in the Shareholder Litigation filed a Revised
Second Consolidated and Amended Complaint, which superseded their previously
filed complaints. The Revised Second Consolidated and Amended Complaint
generally repeated many of the same allegations, and requested relief similar
to that requested in plaintiffs' earlier complaints. In addition, the Revised
Second Consolidated and Amended Complaint alleged that SFP's directors
breached their fiduciary duties: by proceeding with and completing the joint
SFP-BNI Tender Offer; by approving and implementing the Shareholder Rights
Plan, which purportedly resulted in a "premature ending" of the "bidding
process" by allegedly deterring and defeating UPC's acquisition overtures,
exempting BNI from its provisions, and "coercing" SFP stockholders to vote in
favor of the Merger; by approving the termination fee and expense
reimbursement provisions of the Merger Agreement by authorizing the stock
repurchase provisions of the Merger Agreement, which allegedly were designed
to "lock-up" the Merger by providing stockholders with an "illusory promise"
that the Merger Agreement exchange ratio would increase, while reserving SFP's
right not to repurchase such stock; and by purportedly failing to disclose all
material facts necessary for SFP's stockholders to evaluate in an informed
manner and vote on the Merger, including purportedly failing to fully disclose
the risks that the ICC would not approve the Merger and purportedly failing to
fully disclose SFP's intentions with respect to the repurchase of SFP stock,
as permitted by the Merger Agreement, as well as whether there will be a fair
opportunity for all SFP stockholders to "participate" in any SFP stock
repurchases, and on what basis. As
14
<PAGE>
additional relief to that requested in the earlier complaints, plaintiffs
requested injunctive and other relief: enjoining consummation of the Merger;
ordering SFP, SFP's directors, and BNI to make unspecified supplemental
disclosures to stockholders; requiring SFP to conduct a new vote on the Merger
subsequent to such disclosures; enjoining SFP from improperly or
discriminatorily implementing the Shareholder Rights Plan or any other
"defensive" tactic; ordering SFP's directors to take all appropriate steps to
enhance SFP's value and attractiveness as a merger or acquisition candidate,
including "effectively exposing" SFP to the marketplace by means of an active
auction on a "level playing field"; and declaring the termination fee and
expense reimbursement provisions of the Merger Agreement invalid and
unenforceable.
On March 13, 1995, SFP and SFP's directors filed a motion to dismiss the
Shareholder Litigation on the grounds that the Plaintiffs failed to state a
cause of action upon which relief may be granted. BNI also filed a motion to
dismiss the Revised Second Consolidated and Amended Complaint. On May 31,
1995, the Delaware Chancery Court rendered its decision granting the motion to
dismiss that was filed by SFP and SFP's directors on March 13, 1995 and the
motion to dismiss filed by BNI. The plaintiffs appealed the dismissal to the
Delaware Supreme Court.
On November 22, 1995, the Delaware Supreme Court issued an opinion that
affirmed in part and reversed in part the May 31, 1995 decision of the
Delaware Chancery Court. The Delaware Supreme Court reversed the Chancery
Court's dismissal of plaintiffs' claims that, in taking the alleged
"defensive" actions identified in the Revised Second Consolidated and Amended
Complaint, including approval and implementation of the Shareholder Rights
Plan, SFP's directors violated their fiduciary duties to stockholders. The
Delaware Supreme Court affirmed the Chancery Court's dismissal of all other
claims asserted by plaintiffs in the litigation, including all claims against
BNI.
On December 11, 1995, the SFP defendants filed with the Delaware Chancery
Court a motion for summary judgment against plaintiffs' remaining claims in
the Shareholder Litigation, which motion is pending. On December 29, 1995, the
SFP defendants filed their Answer to plaintiffs' Revised Second Consolidated
and Amended Complaint.
BNSF believes this lawsuit is meritless and continues to oppose it
vigorously.
ICC MERGER CASE
On October 13, 1994, BNI, BNRR, SFP, and ATSF ("Applicants") filed a
railroad merger and control application with the ICC, Finance Docket No.
32549, Burlington Northern Inc. and Burlington Northern Railroad Company--
Control and Merger--Santa Fe Pacific Corporation and The Atchison, Topeka and
Santa Fe Railway Company. Applicants sought an order, pursuant to 49 U.S.C.
(S)(S) 11343-11347 (1988), approving and authorizing BNI's acquisition of
control of and merger with SFP, the resulting common control of BNRR and ATSF
by BNSF, the consolidation of BNRR and ATSF by BNSF, the consolidation of BNRR
and ATSF operations, and the merger of BNRR and ATSF. The ICC approved the
application in its written decision served August 23, 1995, which decision was
effective as of September 22, 1995. Several petitions for reconsideration or
to reopen the ICC's decision were filed by parties to the proceeding and all
of these have been denied. Additionally, eight parties to the proceeding filed
petitions for review of the ICC's approval decision with the United States
Court of Appeals for the District of Columbia, which petitions are now pending
before that court. Each of the petitions for reconsideration or to reopen and
for review challenge various aspects of the ICC's decision, including the
extent of conditions imposed on its approval. The principal challenges to the
ICC decision were rejected by the Court of Appeals for the District of
Columbia on March 28, 1997, and the remaining challenge is not expected to
affect materially the benefits to be realized by the acquisition of common
control of BNRR and ATSF by BNSF.
CROW RESERVATION CROSSING ACCIDENT CASE
At approximately 10:15 a.m. on November 22, 1993, there was an accident at a
BNSF Railway crossing located within the boundaries of the Crow reservation in
which three members of the Crow tribe were killed. The crossing, which is
located on a rural gravel road just south of Lodge Grass, Montana, was
protected by crossbucks and advance warning signs.
15
<PAGE>
A lawsuit was filed in the Crow Tribal Court (Estates of Red Wolf, Red Horse
and Bull Tail v. Burlington Northern Railroad Company, Case No. 94-31) on
behalf of the estates of the driver and the two passengers. One of the
passenger cases was severed and has yet to go to trial. The other two cases
proceeded to trial in January 1996 and, on February 6, 1996, a Crow Tribal
Court jury rendered a verdict against BNSF Railway for compensatory damages in
the total amount of $250 million.
BNSF Railway has filed an appeal to the Crow Court of Appeals in and for the
Crow Indian Reservation, where it will seek, among other things, to have the
case dismissed on the basis that the Crow Tribal Court lacks subject matter
jurisdiction over these claims. If the appellate court fails to grant relief
to BNSF Railway, BNSF Railway will pursue its defenses in federal court. On
February 26, 1996, the Federal District Court for the District of Montana
entered an order enjoining any action by the Tribal Court plaintiffs to
enforce the judgment pending appeal through the tribal court and federal court
systems. BNSF Railway was required to post a $5 million bond with the federal
court. The Tribal Court plaintiffs appealed that decision to the Unted States
Court of Appeals for the Ninth Circuit.
On January 29, 1997, the Ninth Circuit issued an opinion which reversed the
district court and remanded the matter to that trial court with directions to
dissolve the injunction. The basis for the appellate court's decision was a
determination that BNSF Railway had failed to exhaust its remedies in the
tribal court. BNSF Railway filed a petition for rehearing, which petition is
pending before the Ninth Circuit.
In Tribal Court, the plaintiffs filed a Notice and Request with the Tribal
Appellate Court requesting, among other things, the entry of an order reducing
the amount of the judgment from $250 million to $25 million. On February 7,
1997, the Tribal Appellate court issued an order setting forth its intention
to grant the motion to reduce the judgment by remanding the matter to the
trial court for the limited purpose of reducing the judgment in accordance
with the request.
OTHER CLAIMS
BNSF and its subsidiaries also are parties to a number of other legal
actions and claims, various governmental proceedings and private civil suits
arising in the ordinary course of business, including those related to
environmental matters and personal injury claims. For a description of certain
claims against SFP Pipelines and the Partnership, see the sections entitled
"East Line Civil Litigation and FERC Proceedings," "East Line Civil
Litigation," and "FERC Proceedings" under Item 3, Legal Proceedings, of the
Partnership's Annual Report on Form 10-K for the year ended December 31, 1996,
which sections are hereby incorporated by reference.
While the final outcome of these and other legal actions referred to under
Item 3 of this Report on Form 10-K cannot be predicted with certainty,
considering among other things the meritorious legal defenses available, it is
the opinion of BNSF management that none of these items, when finally
resolved, will have a material adverse effect on the annual results of
operations, financial position or liquidity of BNSF, although an adverse
resolution of a number of these items could have a material adverse effect on
the results of operations in a particular quarter or fiscal year.
Reference is made to Note 6 to the consolidated financial statements on page
27 of BNSF's 1996 Annual Report to Shareholders for information concerning
certain pending administrative appeals with the Internal Revenue Service,
which information is hereby incorporated by reference.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted by BNSF to a vote of its securities holders during
the fourth quarter of 1996.
16
<PAGE>
EXECUTIVE OFFICERS OF THE REGISTRANT
Listed below are the names, ages, and positions of all executive officers of
BNSF (excluding Robert D. Krebs, an executive officer who is also a director
of BNSF, information as to whom is included in BNSF's Proxy Statement dated
March 5, 1997) and their business experience during the past five years.
Executive officers hold office until their successors are elected or
appointed, or until their earlier death, resignation, or removal.
DOUGLAS J. BABB, 44
Senior Vice President and Chief of Staff since September 1995. Prior to
that, Vice President and General Counsel of BNRR from December 1986.
JAMES B. DAGNON, 57
Senior Vice President-Employee Relations since September 1995. Prior to
that, Executive Vice President, Employee Relations of BNI since January 1992,
and Senior Vice President, Employee Relations of BNI since August 1991.
THOMAS N. HUND, 43
Vice President and Controller since September 1995. Prior to that, Vice
President and Controller of SFP since July 1990.
DONALD G. MCINNES, 56
Senior Vice President and Chief Operations Officer since September 1995.
Prior to that, Senior Vice President and Chief Operating Officer of ATSF since
January 1994, Senior Vice President-Intermodal Business Unit of ATSF since
January 1992, and Vice President-Intermodal of ATSF since July 1989.
JEFFREY R. MORELAND, 52
Senior Vice President-Law and General Counsel since September 1995. Prior to
that, Vice President-Law and General Counsel of SFP from October 1994, and
Vice President-Law and General Counsel of ATSF from June 1989.
MATTHEW K. ROSE, 37
Senior Vice President-Merchandise Business Unit since May 1996. Prior to
that, Vice President-Chemicals and Plastics of ATSF and BNRR from January
1996, Vice President, South Region Field Marketing of BNRR from January 1995,
Vice President, Automotive of BNRR from June 1994, and General Manager,
Facilities and Technology of BNRR from January 1993. Prior to that, Vice
President-Transportation of Triple Crown Services, a subsidiary of Norfolk
Southern Corporation.
CHARLES L. SCHULTZ, 49
Senior Vice President-Intermodal and Automotive Business Unit since February
1996. Prior to that, Vice President-Intermodal of ATSF and BNRR from September
1995, Vice President-Intermodal of ATSF from January 1994, Vice President-
Management Services of ATSF from June 1991, and Vice President-Information
Services of ATSF from July 1989.
DENIS E. SPRINGER, 51
Senior Vice President and Chief Financial Officer since September 1995.
Prior to that, Senior Vice President and Chief Financial Officer of SFP from
October 1993, Senior Vice President, Treasurer and Chief
17
<PAGE>
Financial Officer of SFP from January 1992, and Vice President, Treasurer and
Chief Financial Officer of SFP from January 1991.
GREGORY T. SWIENTON, 47
Senior Vice President-Coal and Agricultural Commodities Business Unit since
May 1996. Prior to that, Senior Vice President-Consumer and Industrial
Business Unit from February 1996, Senior Vice President-Industrial Business
Unit from September 1995, Executive Vice President, Intermodal Business of
BNRR from June 1994, and Executive Director-Europe and Africa (Brussels) of
DHL Worldwide Express (international freight company) from January 1991.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
BNSF's common stock is listed on the New York Stock Exchange under the
symbol "BNI." The common stock is also listed on the Chicago Stock Exchange
and Pacific Stock Exchange. Information as to the high and low sales prices of
such stock for the two years ending December 31, 1996 (or the common stock of
BNI prior to September 22, 1995) and the frequency and amount of dividends
declared on such stock during such period, is set forth below the heading
"Quarterly Financial Data-Unaudited" on page 37 of BNSF's 1996 Annual Report
to Shareholders and is hereby incorporated by reference. The approximate
number of record holders of the common stock at January 31, 1997 was 74,000.
As consideration for its acquisition of Washington Central Railroad Company,
Inc. ("Washington Central") on December 4, 1996, BNSF issued 363,008 shares of
its common stock, $.01 par value, to the four individuals who were Washington
Central's shareholders immediately prior to the merger transaction (the
"Shareholders"), each of whom was an "accredited investor" as defined in Rule
501 under the Securities Act of 1933, plus an additional 46,096 shares to be
held in escrow for four years to assure the performance of certain obligations
of the Shareholders. The offer and sale of BNSF common stock in connection
with the acquisition of Washington Central was exempt from registration
pursuant to Section 4(2) of the Securities Act of 1933 and Rule 506 of
Regulation D promulgated thereunder.
ITEM 6. SELECTED FINANCIAL DATA
There is disclosed on page 1 of BNSF's 1996 Annual Report to Shareholders
selected financial data of BNSF for each of the last five fiscal years. Such
data with respect to the following topics are incorporated by reference:
Revenues; Operating income; Income before extraordinary item and cumulative
effect of change in accounting method; Accounting change/Extraordinary item;
Net income; Primary earnings per share; Fully diluted earnings per share;
Dividends declared per common share; Total assets; and Long-term debt and
commercial paper, including current portion.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results of
Operations appearing on pages 11 through 18 of BNSF's 1996 Annual Report to
Shareholders is hereby incorporated by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements of BNSF and subsidiary companies,
together with the reports thereon, appearing in Part IV of this Report on Form
10-K and on pages 19 through 37 of BNSF's 1996 Annual Report to Shareholders,
are hereby incorporated by reference.
18
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Reference is made to BNSF's Current Report on Form 8-K filed with the
Securities and Exchange Commission on June 26, 1996, regarding BNSF's change
in its independent accountants.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information concerning the directors of BNSF is provided on pages 2 through
4 of BNSF's proxy statement dated March 5, 1997, under the heading "Name, Age
and Business Experience of the Company's Nominees for Directors" and the
information under that heading is hereby incorporated by reference.
Information concerning the executive officers of BNSF (excluding one
executive officer who is also a director of BNSF) is included in Part I of
this Report.
ITEM 11. EXECUTIVE COMPENSATION
Information concerning the compensation of directors and executive officers
of BNSF is provided on pages 5 through 6 under the heading "Directors'
Compensation" and pages 16 through 22 under the heading "EXECUTIVE
COMPENSATION AND OTHER INFORMATION" in BNSF's proxy statement dated March 5,
1997, and the information under those headings is hereby incorporated by
reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information concerning the ownership of BNSF equity securities by certain
beneficial owners and management is provided on pages 7 through 9 under the
headings "SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS" and "SECURITY
OWNERSHIP OF MANAGEMENT" of BNSF's proxy statement dated March 5, 1997, and is
hereby incorporated by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information concerning certain relationships and related transactions is
provided on page 6 under the heading "Certain Relationships and Related
Transactions" of BNSF's proxy statement dated March 5, 1997, and the
information under that heading is hereby incorporated by reference.
19
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) The following documents are filed as a part of this report:
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
1. Consolidated Financial Statements:
Report of Price Waterhouse LLP........................................ [19*]
Report of Coopers & Lybrand L.L.P..................................... F-2
Consolidated Statement of Income for the three years ended December
31, 1996............................................................. [20*]
Consolidated Balance Sheet at December 31, 1996 and 1995.............. [21*]
Consolidated Statement of Cash Flows for the three years ended
December 31, 1996.................................................... [22*]
Consolidated Statement of Changes In Stockholders' Equity for the
three years ended December
31, 1996............................................................. [23*]
Notes to Consolidated Financial Statements............................ [24-37*]
</TABLE>
- --------
(*Incorporated by reference from the indicated pages of BNSF's 1996 Annual
Report to Shareholders.)
2. Consolidated Financial Statement Schedules for the three years ended
December 31, 1996:
<TABLE>
<S> <C>
Report of Price Waterhouse LLP............................................ F-1
Report of Coopers & Lybrand L.L.P......................................... F-2
Schedule II--Valuation and Qualifying Accounts............................ F-3
</TABLE>
Schedules other than that listed above are omitted because they are not
required or applicable, or the required information is included in the
consolidated financial statements or related notes.
3. Exhibits:
See Index to Exhibits on pages E-1-E-4 for a description of the exhibits
filed as a part of this Report.
(b) Reports on Form 8-K
BNSF filed the following Current Reports on Form 8-K during the quarter ended
December 31, 1996, or subsequently:
Current Report on Form 8-K (Date of earliest event reported: October 22,
1996) which referenced under Item 5, Other Events, and filed as an exhibit
under Item 7, Financial Statements, Pro Forma Financial Information and
Exhibits, the registrant's third quarter 1996 earnings press release.
Current Report on Form 8-K (Date of earliest event reported: January 21,
1997) which referenced under Item 5, Other Events, and filed as an exhibit
under Item 7, Financial Statements, Pro Forma Financial Information and
Exhibits, the registrant's fourth quarter 1996 and full year 1996 earnings
press release.
20
<PAGE>
SIGNATURES
BURLINGTON NORTHERN SANTA FE CORPORATION, PURSUANT TO THE REQUIREMENTS OF
SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934, HAS DULY CAUSED
THIS REPORT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED.
BURLINGTON NORTHERN SANTA FE
CORPORATION
/s/ Robert D. Krebs
By: _________________________________
Robert D. Krebs
President and Chief
Executive Officer
Dated: March 31, 1997
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS
REPORT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS ON BEHALF OF BURLINGTON
NORTHERN SANTA FE CORPORATION AND IN THE CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Robert D. Krebs President and Chief Executive Officer
___________________________________________ (Principal Executive Officer), and
Robert D. Krebs Director
/s/ Denis E. Springer Senior Vice President and Chief Financial
___________________________________________ Officer (Principal Financial Officer)
Denis E. Springer
/s/ Thomas N. Hund Vice President and Controller
___________________________________________ (Principal Accounting Officer)
Thomas N. Hund
/s/ Joseph F. Alibrandi* Director
___________________________________________
Joseph F. Alibrandi
/s/ Jack S. Blanton* Director
___________________________________________
Jack S. Blanton
/s/ John J. Burns, Jr.* Director
___________________________________________
John J. Burns, Jr.
/s/ Daniel P. Davison* Chairman of the Board, Director
___________________________________________
Daniel P. Davison
/s/ George Deukmejian* Director
___________________________________________
George Deukmejian
</TABLE>
S-1
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Daniel J. Evans* Director
___________________________________________
Daniel J. Evans
/s/ Bill M. Lindig* Director
___________________________________________
Bill M. Lindig
/s/ Ben F. Love* Director
___________________________________________
Ben F. Love
/s/ Roy S. Roberts* Director
___________________________________________
Roy S. Roberts
/s/ Marc J. Shapiro* Director
___________________________________________
Marc J. Shapiro
/s/ Arnold R. Weber* Director
___________________________________________
Arnold R. Weber
/s/ Robert H. West* Director
___________________________________________
Robert H. West
/s/ J. Steven Whisler* Director
___________________________________________
J. Steven Whisler
/s/ Edward E. Whitacre, Jr.* Director
___________________________________________
Edward E. Whitacre, Jr.
/s/ Ronald B. Woodard* Director
___________________________________________
Ronald B. Woodard
/s/ Michael B. Yanney* Director
___________________________________________
Michael B. Yanney
</TABLE>
/s/ Jeffrey R. Moreland
*By: ________________________________
Jeffrey R. Moreland
Senior Vice President-Law and
General Counsel
Attorney in Fact
Dated: March 31, 1997
S-2
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors of
Burlington Northern Santa Fe Corporation and Subsidiaries
Our audit of the consolidated financial statements for the year ended
December 31, 1996 referred to in our report dated February 7, 1997 appearing
on page 19 of the 1996 Annual Report to Shareholders of Burlington Northern
Santa Fe Corporation (which report and consolidated financial statements are
incorporated by reference in this Annual Report on Form 10-K) also included an
audit of the Financial Statement Schedule listed in Item 14(a)2. of this Form
10-K. In our opinion, the Financial Statement Schedule presents fairly, in all
material respects, the information set forth therein for the year ended
December 31, 1996 when read in conjunction with the related consolidated
financial statements.
Price Waterhouse LLP
Chicago, Illinois
February 7, 1997
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Stockholders and Board of Directors of
Burlington Northern Santa Fe Corporation and Subsidiaries
We have audited the consolidated financial statements of Burlington Northern
Santa Fe Corporation and Subsidiaries as of December 31, 1995, and for each of
the two years in the period ended December 31, 1995, which financial
statements are included on pages 20 through 37 of the 1996 Annual Report to
Shareholders of Burlington Northern Santa Fe Corporation and incorporated by
reference herein. We have also audited the financial statement schedule for
each of the two years in the period ended December 31, 1995 listed in Item 14
of this Form 10-K. These financial statements and financial statement schedule
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements and financial statement
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Burlington
Northern Santa Fe Corporation and Subsidiaries as of December 31, 1995, and
the consolidated results of their operations and their cash flows for each of
the two years in the period ended December 31, 1995, in conformity with
generally accepted accounting principles. In addition, in our opinion, the
financial statement schedule referred to above, when considered in relation to
the basic financial statements taken as a whole, presents fairly, in all
material respects, the information required to be included therein.
As discussed in Note 4 to the consolidated financial statements, the Company
changed its method of accounting for periodic major locomotive overhauls in
1995 and for postemployment benefits in 1994.
Coopers & Lybrand L.L.P.
Fort Worth, Texas
February 15, 1996
F-2
<PAGE>
SCHEDULE II
BURLINGTON NORTHERN SANTA FE CORPORATION AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED DECEMBER 31, 1996, 1995 AND 1994
(IN MILLIONS)
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E COLUMN F
-------- --------- --------- -------- ---------- --------
BALANCE
BALANCE ADDITION AT END
AT ADDITIONS OF SFP OF
BEGINNING CHARGED ACCRUAL DEDUCTIONS PERIOD
DESCRIPTION OF PERIOD TO INCOME (1) (2) (3)
----------- --------- --------- -------- ---------- --------
<S> <C> <C> <C> <C> <C>
December 31, 1996
Casualty and environmental
liabilities.................. $916 $262 $-- $368 $810
==== ==== ==== ==== ====
December 31, 1995
Casualty and environmental
liabilities.................. $637 $164 $320 $205 $916
==== ==== ==== ==== ====
December 31, 1994
Casualty and environmental
liabilities.................. $689 $183 $-- $235 $637
==== ==== ==== ==== ====
</TABLE>
- --------
(1) Represents SFP's recorded liability at date of Merger
(2) Principally represents cash payments
(3) Classified in the consolidated balance sheet as follows:
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Casualty and environmental liabilities (current
liabilities)............................................. $267 $290 $221
Casualty and environmental liabilities (noncurrent
liabilities)............................................. 543 626 416
---- ---- ----
$810 $916 $637
==== ==== ====
</TABLE>
F-3
<PAGE>
BURLINGTON NORTHERN SANTA FE CORPORATION
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
2 Agreement and Plan of Merger dated as of June 29, 1994 between
Burlington Northern Inc. and Santa Fe Pacific Corporation as amended
by Amendments 1 and 2 thereto, together with Amendments 3 and 4
thereto. Schedules have been omitted. Schedules will be furnished
supplementally to the Securities and Exchange Commission upon request.
Incorporated by reference to Exhibit 2.1 to BNSF's Report on Form 8-K
(Date of earliest event reported: September 22, 1995).
3.1 Amended and Restated Certificate of Incorporation of BNSF (amended as
of September 11, 1995). Incorporated by reference to Exhibit 3.1 to
BNSF's Report on Form 10-Q for the quarter ended September 30, 1995.
3.2 By-Laws of BNSF (amended as of January 18, 1996). Incorporated by
reference to Exhibit 3.2 to BNSF's Report on Form 10-K for the fiscal
year ended December 31, 1995.
4.1 Amended and Restated Five-Year Revolving Credit Agreement dated as of
November 15, 1996, between Burlington Northern Santa Fe Corporation
and Chemical Securities Inc. and J.P. Morgan Securities Inc. as Co-
arrangers, The Chase Manhattan Bank as Administrative Agent, Morgan
Guaranty Trust Company of New York as Documentation Agent, and a
consortium of lenders.
4.2 Amended and Restated 364-Day Revolving Credit Agreement dated as of
November 15, 1996, between Burlington Northern Santa Fe Corporation
and Chemical Securities Inc. and J.P. Morgan Securities Inc., The
Chase Manhattan Bank as Administrative Agent, Morgan Guaranty Trust
Company of New York as Documentation Agent, and a consortium of
lenders.
BNSF is not filing any other instruments evidencing indebtedness
because the total amount of securities authorized under any single
such instrument does not exceed 10% of BNSF's total assets. BNSF will
furnish copies of any material instruments upon request of the
Securities and Exchange Commission.
10.1* Burlington Northern Santa Fe Non-Employee Directors' Stock Plan.
Incorporated by reference to Appendix A to BNSF's Proxy Statement
dated March 5, 1996. Amendment to Burlington Northern Santa Fe Non-
Employee Directors' Stock Plan dated January 16, 1997.
10.2* Burlington Northern Santa Fe Corporation 1987 Stock Option Incentive
Plan. Incorporated by reference to BNSF's Registration Statement on
Form S-8 (File No. 33-62833).
10.3* Burlington Northern Santa Fe Corporation Incentive Compensation Plan.
Incorporated by reference to BNSF's Registration Statement on Form S-8
(File No. 33-62835).
10.4* Burlington Northern Inc. Senior Executive Survivor Benefit Plan as of
April 1, 1986. Incorporated by reference to Amendment No. 1 to BNI's
Report on Form 10-K for the fiscal year ended December 31, 1987.
10.5* Burlington Northern Inc. Deferred Compensation Plan as amended
effective January 1, 1991. Incorporated by reference to Exhibit 10.5
to BNSF's Report on Form 10-K for the fiscal year ended December 31,
1995.
10.6* Burlington Northern Inc. Performance Share Unit Plan (1981) as of
January 1, 1988. Incorporated by reference to Amendment No. 1 to BNI's
Report on Form 10-K for the fiscal year ended December 31, 1987.
10.7* Burlington Northern Inc. 1987 Performance Share Unit Plan as of
January 1, 1988. Incorporated by reference to Amendment No. 1 to BNI's
Report on Form 10-K for the fiscal year ended December 31, 1987.
</TABLE>
- --------
*Management contract or compensatory plan or arrangement.
E-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.8* Burlington Northern Inc. Supplemental Benefits Plan (as amended and
restated effective September 21, 1995). Incorporated by reference to
Exhibit 10.8 to BNSF's Report on Form 10-K for the fiscal year ended
December 31, 1995.
10.9* 1989 Burlington Northern Inc. Restricted Stock Incentive Plan.
Incorporated by reference to BNI's Report on Form 10-K for the fiscal
year ended December 31, 1990.
10.10* Burlington Northern Santa Fe Corporation 1990 Directors Stock Option
Plan. Incorporated by reference to BNSF's Registration Statement on
Form S-8 (File No. 33-62825).
10.11* Burlington Northern Santa Fe Incentive Bonus Stock Program.
Incorporated by reference to Exhibit 10.11 to BNSF's Report on Form
10-K for the fiscal year ended December 31, 1995.
10.12* Burlington Northern Santa Fe Corporation 1992 Stock Option Incentive
Plan. Incorporated by reference to BNSF's Registration Statement on
Form S-8 (File No. 33-62839).
10.13* Burlington Northern Santa Fe 1996 Stock Incentive Plan. Incorporated
by reference to Appendix B to BNSF's Proxy Statement dated March 5,
1996.
10.14* Burlington Northern Santa Fe Supplemental Retirement Plan,
Incorporated by reference to Exhibit 10.1 to BNSF's Report on Form 10-
Q for the quarter ended September 30, 1996.
10.15* Burlington Northern Santa Fe Estate Enhancement Program, as amended
and restated effective October 1, 1996.
10.16* Agreement between BNSF and Robert D. Krebs dated as of January 30,
1997.
10.17* Form of BNSF Change-in-Control Agreement (which may be entered into by
all executive officers of BNSF, except for Mr. Krebs, and which would
replace any BNI or SFP change-in-control agreement currently held).
10.18* Employment Agreement by and between Burlington Northern Inc. and
Gregory T. Swienton. Incorporated by reference to Exhibit 10.23 to
BNI's Report on Form 10-K for the fiscal year ended December 31, 1994.
10.19* Burlington Northern Santa Fe Deferred Compensation Plan for Directors
as amended January 16, 1997.
10.20* Burlington Northern Inc. Nonqualified 401(k) Restoration Plan.
Incorporated by reference to Exhibit 10.20 to BNSF's Report on Form
10-K for the fiscal year ended December 31, 1995.
10.21* Burlington Northern Inc. Form of Severance Agreement and amendments
through September 18, 1995 (applicable to Messrs. Babb, Dagnon, Rose
and Swienton as of March 26, 1997). Incorporated by reference to
Exhibit 10.21 to BNSF's Report on Form 10-K for the fiscal year ended
December 31, 1995.
10.22* Burlington Northern Inc. Director's Charitable Award Program.
Incorporated by reference to Exhibit 10.22 to BNSF's Report on Form
10-K for the fiscal year ended December 31, 1995.
10.23* Burlington Northern Santa Fe Salary Exchange Option Program.
Incorporated by reference to Exhibit 10.23 to BNSF's Report on Form
10-K for the fiscal year ended December 31, 1995. Amendment to
Burlington Northern Santa Fe Salary Exchange Option Program dated
January 15, 1997.
10.24* Santa Fe Pacific Corporation Supplemental Retirement Plan
("Supplemental Plan"). Incorporated by reference to Exhibit 10(d) to
SFP's Report on Form 10-K for the fiscal year ended December 31, 1984.
Supplemental Plan as amended October 1, 1989, and Amendment to
Supplemental Plan dated February 27, 1990, are incorporated by
reference to Exhibit 10(d) to SFP's Report on Form 10-K for the fiscal
year ended December 31, 1989. Amendment to Supplemental Plan dated
March 22, 1994, and effective January 1, 1994, is incorporated by
reference to Exhibit 10.24 to BNSF's Report on Form 10-K for the
fiscal year ended December 31, 1995.
</TABLE>
- --------
*Management contract or compensatory plan or arrangement.
E-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.25* SFP Incentive Stock Compensation Plan. Incorporated by reference to
Exhibit 10(e) to SFP's Report on Form 10-K for the fiscal year ended
December 31, 1985. Amendments to SFP Incentive Stock Compensation Plan
dated May 28, 1987 and October 29, 1987 are incorporated by reference
to Exhibit 10(e) to SFP's Report on Form 10-K for the fiscal year
ended December 31, 1987. Amendments to SFP Incentive Stock
Compensation Plan dated March 8, 1989, June 8, 1989, and February 27,
1990 are incorporated by reference to Exhibit 10(e) to SFP's Report on
Form 10-K for the fiscal year ended December 31, 1989. Amendment to
SFP Incentive Stock Compensation Plan effective as of July 24, 1990 is
incorporated by reference to SFP's Report on Form 10-Q for the quarter
ended June 30, 1990. Amendment to SFP Incentive Stock Compensation
Plan dated December 4, 1990, is incorporated by reference to Exhibit
10(e) to SFP's Report on Form 10-K for the fiscal year ended December
31, 1990.
10.26* SFP Form of Severance Agreement dated November 2, 1987 (applicable to
Messrs. Hund, McInnes, Moreland, Schultz and Springer as of March 26,
1997), as adopted in May 1987 and amended in October 1987.
Incorporated by reference to Exhibit 10(j) to SFP's Report on
Form 10-K for the fiscal year ended December 31, 1987. Amendment to
Form of Severance Agreement dated July 24, 1990 is incorporated by
reference to SFP's Report on Form 10-Q for the quarter ended June 30,
1990. Amendment to Form of Severance Agreement adopted January 25,
1994 is incorporated by reference to Exhibit 10.1 to SFP's Report on
Form 10-Q for the quarter ended June 30, 1994. Amendment to Form of
Severance Agreement dated March 28, 1995 is incorporated by reference
to Exhibit 10.5 to SFP's Report on Form 10-K for the fiscal year ended
December 31, 1994.
10.27* Burlington Northern Santa Fe Directors' Retirement Plan. Incorporated
by reference to Exhibit 10.29 to BNSF's Report on Form 10-K for the
fiscal year ended December 31, 1995.
10.28* Benefits Protection Trust Agreement dated as of January 22, 1996 by
and between BNSF and Bankers Trust Company.
10.29* Retirement Benefit Agreement dated February 26, 1992 between SFP and
R. D. Krebs. Incorporated by reference to Exhibit 10(l) to SFP's
Report on Form 10-K for the fiscal year ended December 31, 1991.
10.30* Amended and Restated Trust Agreement dated as of April 1, 1994 by and
between SFP and The Bank of New York. Incorporated by reference to
Exhibit 10.32 to BNSF's Report on Form 10-K for the fiscal year ended
December 31, 1995.
10.31* Trust Agreement dated as of July 26, 1994 by and between SFP and The
Bank of New York. Incorporated by reference to Exhibit 10.33 to BNSF's
Report on Form 10-K for the fiscal year ended December 31, 1995.
10.32* The Atchison, Topeka and Santa Fe Railway Company Incentive
Compensation Plan. Incorporated by reference to Exhibit 10(n) to SFP's
Report on Form 10-K for the fiscal year ended December 31, 1991.
10.33* Burlington Northern Santa Fe Long Term Incentive Stock Plan.
Incorporated by reference to BNSF's Registration Statement on Form S-8
(File No. 33-63247).
10.34* Santa Fe Pacific Corporation Supplemental Retirement and Savings Plan.
Incorporated by reference to Exhibit 10(s) to SFP's Report on Form 10-
K for the fiscal year ended December 31, 1993.
10.35* Burlington Northern Santa Fe Incentive Stock Compensation Plan.
Incorporated by reference to BNSF's Registration Statement on Form S-8
(File No. 33-63253).
11 Computation of Earnings per Common Share.
</TABLE>
- --------
*Management contract or compensatory plan or arrangement.
E-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
12 Computation of Ratio of Earnings to Fixed Charges.
13 1996 Annual Report to Shareholders of BNSF (Consolidated Financial
Highlights on page 1, and pages 11-37, only).
21 Subsidiaries of BNSF.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Price Waterhouse LLP.
24 Powers of Attorney.
27 Financial Data Schedule.
99 Santa Fe Pacific Pipeline Partners, L.P. Report on Form 10-K for the
fiscal year ended December 31, 1996 (sections in Item 3, Legal
Proceedings, under the headings "East Line Civil Litigation and FERC
Proceedings," "East Line Civil Litigation" and "FERC Proceedings,"
only).
</TABLE>
E-4
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.1
<SEQUENCE>2
<DESCRIPTION>AMENDED & RESTATED 5 YR CREDIT AGREEMENT
<TEXT>
<PAGE>
==========================================================================
BURLINGTON NORTHERN SANTA FE CORPORATION
_____________________________________
$1,500,000,000
AMENDED AND RESTATED
FIVE-YEAR REVOLVING CREDIT AGREEMENT
Dated as of November 15, 1996
_____________________________________
CHASE SECURITIES INC.
and
J.P. MORGAN SECURITIES INC.,
as Co-Arrangers,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
==========================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . 17
SECTION 2. THE REVOLVING CREDIT LOANS . . . . . . . . . . . . . . . 18
2.1 The Commitments . . . . . . . . . . . . . . . . . . 18
2.2 Procedure for Revolving Credit Borrowing . . . . . 18
2.3 Repayment of Revolving Credit Loans . . . . . . . . 19
2.4 Commitment Increases . . . . . . . . . . . . . . . . 19
SECTION 3. THE MONEY MARKET LOANS . . . . . . . . . . . . . . . . . 20
3.1 Money Market Option . . . . . . . . . . . . . . . . 20
3.2 Money Market Quote Request . . . . . . . . . . . . 20
3.3 Invitation for Money Market Quotes . . . . . . . . 21
3.4 Submission and Contents of Money Market Quotes . . 21
3.5 Notice to Borrower . . . . . . . . . . . . . . . . . 22
3.6 Acceptance and Notice by Borrower . . . . . . . . . 23
3.7 Allocations . . . . . . . . . . . . . . . . . . . . 23
3.8 Certain Restrictions . . . . . . . . . . . . . . . . 24
3.9 Repayment of Money Market Loans . . . . . . . . . . 24
SECTION 4. CERTAIN PROVISIONS APPLICABLE TO
THE COMMITMENTS AND THE LOANS . . . . . . . . . . . . . 24
4.1 Fees . . . . . . . . . . . . . . . . . . . . . . . . 24
4.2 Minimum Borrowing Amounts . . . . . . . . . . . . . 24
4.3 Termination or Reduction of Commitments . . . . . . 24
4.4 Optional Prepayments; Mandatory Prepayments . . . . 25
4.5 Conversion and Continuation Options . . . . . . . . 25
4.6 Minimum Amounts of Tranches . . . . . . . . . . . . 26
4.7 Interest Rates and Payment Dates . . . . . . . . . 26
4.8 Computation of Interest and Fees . . . . . . . . . 27
4.9 Evidence of Debt . . . . . . . . . . . . . . . . . . 27
4.10 Basis for Determining Interest Rate Inadequate
or Unfair . . . . . . . . . . . . . . . . . . . . . 28
4.11 Illegality . . . . . . . . . . . . . . . . . . . . 29
4.12 Increased Cost and Reduced Return . . . . . . . . 29
4.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . 31
4.14 Base Rate Loans Substituted for Affected Eurodollar
Loans . . . . . . . . . . . . . . . . . . . . . . 34
4.15 Pro Rata Treatment and Payments . . . . . . . . . 34
4.16 Funding Losses . . . . . . . . . . . . . . . . . . 35
4.17 Replacement of Affected Lender . . . . . . . . . . 36
-i-
<PAGE>
Page
----
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . 36
5.1 Financial Condition . . . . . . . . . . . . . . . . 36
5.2 No Change . . . . . . . . . . . . . . . . . . . . . 37
5.3 Corporate Existence and Power . . . . . . . . . . . 37
5.4 Corporate and Governmental Authorization;
Non Contravention . . . . . . . . . . . . . . . . . 37
5.5 Binding Effect . . . . . . . . . . . . . . . . . . . 37
5.6 Litigation . . . . . . . . . . . . . . . . . . . . . 37
5.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . 38
5.8 Federal Regulations . . . . . . . . . . . . . . . . 38
5.9 ERISA . . . . . . . . . . . . . . . . . . . . . . . 38
5.10 Not an Investment Company . . . . . . . . . . . . 38
5.11 Subsidiaries . . . . . . . . . . . . . . . . . . . 38
5.12 Environmental Matters . . . . . . . . . . . . . . 39
5.13 Full Disclosure . . . . . . . . . . . . . . . . . . 39
5.14 Limitation on Subsidiary Restrictions . . . . . . 39
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . 39
6.1 Conditions to Closing Date . . . . . . . . . . . . 39
6.2 Conditions to Each Loan . . . . . . . . . . . . . . 41
SECTION 7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . 41
7.1 Information . . . . . . . . . . . . . . . . . . . . 41
7.2 Maintenance of Properties; Insurance . . . . . . . 44
7.3 Conduct of Business and Maintenance of Existence . . 44
7.4 Compliance with Laws . . . . . . . . . . . . . . . . 45
7.5 Use of Proceeds . . . . . . . . . . . . . . . . . . 45
7.6 Maintenance of Ownership of Railroads . . . . . . . 45
SECTION 8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . 45
8.1 Financial Condition Covenants . . . . . . . . . . . 45
8.2 Limitation on Debt . . . . . . . . . . . . . . . . . 45
8.3 Limitation on Liens . . . . . . . . . . . . . . . . 46
8.4 Consolidations, Mergers and Sale of Assets . . . . 47
8.5 Limitation on Transactions with Affiliates . . . . 48
8.6 Limitation on Subsidiary Restrictions . . . . . . . 48
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . 48
9.1 Events of Default . . . . . . . . . . . . . . . . . 48
9.2 Notice of Default . . . . . . . . . . . . . . . . . 51
SECTION 10. THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . 51
10.1 Appointment and Authorization . . . . . . . . . . 51
10.2 Agents and Affiliates . . . . . . . . . . . . . . 51
10.3 Action by Agents . . . . . . . . . . . . . . . . . 51
10.4 Consultation with Experts; Delegation of Duties . . 52
-ii-
<PAGE>
Page
----
10.5 Liability of Agents . . . . . . . . . . . . . . . . 52
10.6 Indemnification of Agents . . . . . . . . . . . . 52
10.7 Credit Decision . . . . . . . . . . . . . . . . . . 53
10.8 Successor Agents . . . . . . . . . . . . . . . . . 53
10.9 The Co-Arrangers. . . . . . . . . . . . . . . . . . 53
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 53
11.1 Amendments and Waivers . . . . . . . . . . . . . . 53
11.2 Notices . . . . . . . . . . . . . . . . . . . . . . 54
11.3 No Waiver; Cumulative Remedies . . . . . . . . . . 55
11.4 Survival of Representations and Warranties . . . . 55
11.5 Expenses . . . . . . . . . . . . . . . . . . . . . 55
11.6 Successors and Assigns . . . . . . . . . . . . . . 56
11.7 Indemnification by the Borrower . . . . . . . . . 57
11.8 Adjustments . . . . . . . . . . . . . . . . . . . . 58
11.9 Counterparts . . . . . . . . . . . . . . . . . . . 58
11.10 Severability . . . . . . . . . . . . . . . . . . . 58
11.11 Integration . . . . . . . . . . . . . . . . . . . 59
11.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . 59
11.13 Submission To Jurisdiction; Waivers . . . . . . . 59
11.14 Acknowledgments . . . . . . . . . . . . . . . . . 59
11.15 Certain Existing Lenders . . . . . . . . . . . . 60
11.16 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . 60
SCHEDULES:
Schedule I Bank Names, Addresses and Commitments
Schedule II Existing Debt
Schedule III Certain Litigation and Environmental Matters
EXHIBITS:
Exhibit A Form of Money Market Quote Request
Exhibit B Form of Invitation for Money Market Quotes
Exhibit C Form of Money Market Quote
Exhibit D Form of Notice of Money Market Borrowing
Exhibit E-1 Form of Opinion of Mayer, Brown & Platt
Exhibit E-2 Form of Opinion of General Counsel
Exhibit E-3 Form of Opinion of Simpson Thacher & Bartlett
Exhibit F Form of Assignment and Acceptance
Exhibit G-1 Form of Revolving Credit Note
Exhibit G-2 Form of Money Market Note
Exhibit H Form of New Lender Supplement
Exhibit I Form of Commitment Increase Supplement
-iii-
<PAGE>
AMENDED AND RESTATED FIVE-YEAR REVOLVING CREDIT AGREEMENT, dated
as of November 15, 1996, among:
(i) BURLINGTON NORTHERN SANTA FE CORPORATION, a
Delaware corporation (the "Borrower");
(ii) the several banks and other financial
institutions from time to time parties to this Agreement as Lenders (the
"Lenders");
(iii) CHASE SECURITIES INC. and J.P. MORGAN
SECURITIES INC., as Co-Arrangers (in such capacity, the "Co-
Arrangers");
(iv) THE CHASE MANHATTAN BANK, as Administrative
Agent (in such capacity, the "Administrative Agent"); and
(v) MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent (in such capacity, the "Documentation Agent").
W I T N E S S E T H :
-------------------
WHEREAS, the Borrower wishes to amend and restate its Five-Year
Revolving Credit Agreement, dated as of November 21, 1995 (the "Existing
Credit Agreement"), among the Borrower, the Lenders, the Co-Arrangers,
the Administrative Agent and the Documentation Agent;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree that
the Existing Credit Agreement is amended and restated in its entirety,
effective as of the Closing Date, as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Absolute Rate Auction": a solicitation of Money
Market Quotes setting forth Money Market Absolute Rates
pursuant to Section 3.
"Accounts Receivable Financing": any transaction or
series of transactions that may be entered into by the Borrower
or any of its Subsidiaries pursuant to which the Borrower or
any of its Subsidiaries may sell, convey or otherwise transfer,
or may grant a security interest in, Receivables Program Assets
(it being understood that such
<PAGE>
2
transaction or transactions may, or may not, be recorded as
liabilities on the consolidated balance sheet of the Borrower).
"Accounts Receivable Financing Amount": with respect
to any Accounts Receivable Financing and without duplication,
the outstanding principal amount of obligations referred to in
clause (a) of the definition of Receivables Program
Obligations.
"Administrative Agent": as defined in the Preamble to
this Agreement.
"Administrative Questionnaire": with respect to each
Lender, an administrative questionnaire in the form prepared by
the Administrative Agent and submitted to the Administrative
Agent (with a copy to the Borrower) duly completed by such
Lender.
"Affected Lender" means any Lender (i) that has
demanded compensation under subsection 4.12 or 4.13 or (ii)
whose obligation to make Eurodollar Loans has been suspended
pursuant to subsection 4.11.
"Affiliate": each Controlling Person and each Person
(other than the Borrower or a Subsidiary) that is controlled by
or is under common control with a Controlling Person.
"Agents": the collective reference to the
Administrative Agent and the Documentation Agent.
"Agreement": this Amended and Restated $1,500,000,000
Five-Year Revolving Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Lending Office": with respect to any
Lender, (a) in the case of its Base Rate Loans, its Domestic
Lending Office, (b) in the case of its Eurodollar Loans, its
Eurodollar Lending Office and (c) in the case of its Money
Market Loans, its Money Market Lending Office.
"Applicable Margin": for any Revolving Credit Loan on
any day, (a) in the case of Base Rate Loans, 0% and (b) in the
case of Eurodollar Loans, the rate per annum set forth below
opposite the applicable Rating in effect on such day:
Rating Applicable Margin
------ -----------------
Rating I .13%
Rating II .175
Rating III .185
Rating IV .215
<PAGE>
3
Rating V .30
Rating VI .45
; provided, that if on any day more than one Rating would be
applicable, the Applicable Margin shall be determined on the
basis of the higher of such Ratings (i.e., the Rating having
the lower numerical designation), unless such higher Rating is
more than one Rating category higher than the lower of such
Ratings, in which event the Applicable Margin will be
determined on the basis of the median Rating (or the higher of
the intermediate Ratings if there is no median Rating).
"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": each Assignment and
Acceptance, substantially in the form of Exhibit F, delivered
pursuant to subsection 11.6(c).
"Base Rate": for any day, a rate per annum equal to
the higher of (a) the Prime Rate for such day and (b) the sum
of 1/2 of 1% plus the Federal Funds Rate for such day.
"Base Rate Loan": a Revolving Credit Loan bearing
interest based upon the Base Rate in accordance with this
Agreement.
"Benefitted Lender": defined in subsection 11.8.
"Borrower": as defined in the Preamble to this
Agreement.
"Borrowing Date": any Domestic Business Day or
Eurodollar Business Day, as the case may be, specified in a
notice pursuant to subsection 2.2 or 3.2 as a date on which the
Borrower requests the Lenders to make Loans hereunder.
"Burlington Northern Railroad": Burlington Northern
Railroad Company, a Delaware corporation, and its successors.
"Change of Control": a Change of Control shall be
deemed to occur (a) if a "person" (including any syndicate or
group deemed to be a "person" under Sections 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of more than 30% of the then
outstanding voting stock of the Borrower; or (b) if the
majority of the Board of Directors of the Borrower shall not be
Continuing Directors of the Borrower. For purposes of this
definition, "Continuing Directors" means, as of any date and
with respect to any Person, (i) individuals who on the date one
year prior to such date were members of such Person's Board of
Directors and (ii) any new Directors whose nomination for
election by such Person's shareholders was approved by a vote
of at least a majority of the Directors then still in office
who either were
<PAGE>
4
Directors on the date one year prior to such date or whose
nomination for election was previously so approved.
"Closing Date": the date on which the conditions
precedent set forth in subsection 6.1 shall be satisfied.
"Co-Arrangers": as defined in the Preamble to this
Agreement.
"Committed Credit Facility": any credit facility
pursuant to which the lenders parties thereto have committed,
subject to the conditions set forth therein, to make loans or
extend other credit to the Borrower and/or any Material
Subsidiary.
"Commitment": as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to the Borrower hereunder
in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name
under the column "Commitment" on Schedule I (or such portion
thereof assigned to such Lender pursuant to subsection 11.6),
as such amount may be changed from time to time in accordance
with the provisions of this Agreement.
"Commitment Increase Notice": as defined in subsection
2.4(a).
"Commitment Percentage": as to any Lender at any time,
the percentage which such Lender's Commitment then constitutes
of the aggregate Commitments (or, at any time after all the
Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender's Loans
then outstanding constitutes of the aggregate principal amount
of the Loans then outstanding).
"Commitment Period": the period from and including the
Closing Date to and including November 15, 2001.
"Consolidated Subsidiary": at any date, any Subsidiary
or other entity the accounts of which are consolidated with
those of the Borrower in its consolidated financial statements
prepared in accordance with GAAP as of such date.
"Consolidated Tangible Net Worth": at any date, the
consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries less their consolidated Intangible
Assets, all as included in a balance sheet prepared in
accordance with GAAP as of such date; for purposes of this
definition, "Intangible Assets" means the amount (to the extent
reflected in such balance sheet) of (a) all write-ups (other
than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within
twelve months after the acquisition of such business)
subsequent to September 30, 1995 in the book value of any asset
owned by the Borrower or a Consolidated Subsidiary, (b) all
investments in unconsolidated Subsidiaries, (c) all equity
investments in Persons (other than Pipeline Partners and TTX
Company) that are not Subsidiaries to the extent that the
aggregate amount of all
<PAGE>
5
such investments exceeds $50,000,000, and (d) all unamortized
debt issuance costs, goodwill, patents, trademarks, service
marks, trade names, copyrights, organization or developmental
expenses and other intangible assets (other than unamortized
debt discount).
"Consolidated Total Capital": at any date, the sum of
(i) Consolidated Total Debt at such date and (ii) Consolidated
Tangible Net Worth at such date.
"Consolidated Total Debt": the aggregate amount of all
Debt of the Borrower and its Consolidated Subsidiaries, plus
all related unamortized debt discount, plus any Accounts
Receivable Financing Amount, determined on a consolidated basis
in accordance with GAAP; provided that there shall not be
counted for purposes of determining Consolidated Total Debt (i)
any Debt of Pipeline Partners for which a Subsidiary is liable
solely by virtue of being a general partner of such debtor and
(ii) the Accounts Receivable Financing Amount of up to
$350,000,000 in respect of Receivables Program Obligations that
do not constitute Debt.
"Controlling Person": any Person that is in control of
the Borrower (such control being the power to direct or cause a
direction of the management and policies of the Borrower,
whether through the ownership of voting stock, by contract or
otherwise), but the mere holding of a position as an officer or
a director of the Borrower shall not, in the absence of other
factors, cause a Person to be a Controlling Person.
"Crow Judgment": the judgment in effect on the date
hereof in respect of the case styled Estates of Red Wolf, Red
Horse and Bull Tail v. Burlington Northern Railroad Company,
Case No. 94-31 in the Crow Tribal Court.
"Debt": of any Person at any date, without
duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (c) all accrued
obligations of such Person to pay the deferred purchase price
of property or services, except (i) any obligation with respect
to an asset the purchase price of which does not exceed
$50,000, (ii) any obligation arising in the ordinary course of
business and payable in full in less than one year and (iii)
accounts payable or accrued expenses arising in the ordinary
course of business and payable in full in less than one year,
(d) all lease obligations of such Person as lessee which would
be capitalized in accordance with GAAP, (e) all Debt of others
secured by a Lien on any asset of such Person, whether or not
such Debt is otherwise an obligation of such Person (but only
to the extent of the fair market value of the asset subject to
such Lien), (f) all obligations of such Person in respect of
acceptances issued or created for the account of such Person
and all obligations of such Person which have become due and
payable to reimburse the issuing bank or other Person in
respect of a letter of credit or similar instrument issued for
such Person's account, (g) any obligations of the Borrower or
any Subsidiary under Receivables Documents to repurchase or
otherwise insure the collectability of
<PAGE>
6
Receivables Program Assets other than (i) any such obligations
for breach of warranty claims and (ii) any such obligations
under expense reimbursement provisions, indemnity provisions
and interest and yield protection provisions and (h) all
obligations of others of the character described in the
foregoing clauses (a) through (g) Guaranteed by such Person
(but only to the extent of the maximum liability of such Person
under such Guarantee).
"Default": any of the events specified in Section 9,
whether or not any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been
satisfied.
"Disposition": the sale, assignment, lease, exchange,
transfer or other disposition of any asset, other than
equipment or materials which are unfit or undesirable for use
by the Borrower and its Subsidiaries and disposed of in the
ordinary course of business; and "Dispose" shall be the verb
form of such term.
"Documentation Agent": as defined in the Preamble to
this Agreement.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Business Day": any day except a Saturday,
Sunday or other day on which commercial banks in New York City
or Chicago are authorized by law to close.
"Domestic Lending Office": as to each Lender, its
office located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative
Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Administrative
Agent.
"Environmental Laws": any and all applicable federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees,
injunctions, permits, concessions, grants, franchises,
licenses, governmental agreements and other restrictions
relating to the environment, the effect of the environment on
human health or to emissions, discharges or releases of
pollutants, contaminants, or Hazardous Substances or wastes
into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, or Hazardous Substances or wastes or
the clean-up or other remediation thereof.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended, or any successor statute.
"ERISA Group": the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under
<PAGE>
7
common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414
of the Internal Revenue Code.
"Eurodollar Business Day": any Domestic Business Day
on which commercial banks are open for international business
(including dealings in Dollar deposits) in London.
"Eurodollar Lending Office": as to each Lender, its
office, branch or affiliate located at its address set forth in
its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Eurodollar Lending Office)
or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Eurodollar Lending Office by
notice to the Borrower and the Administrative Agent.
"Eurodollar Loans": Revolving Credit Loans bearing
interest based upon the Eurodollar Rate in accordance with this
Agreement.
"Eurodollar Rate": for any Interest Period in respect
of Eurodollar Loans or Money Market LIBOR Loans, the average
(rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in Dollars
are offered by each of the Reference Lenders to prime banks in
the London interbank market at approximately 11:00 A.M., London
time, two Eurodollar Business Days before the first day of such
Interest Period, for a period of time comparable to such
Interest Period.
"Event of Default": any of the events specified in
Section 9, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition, has
been satisfied.
"Existing Credit Agreement": as defined in the
recitals hereto.
"Facility Fee Calculation Amount": as to any Lender on
any date, the sum of (a) the outstanding principal amount of
such Lender's Revolving Credit Loans on such date and (b) the
undrawn amount of such Lender's Commitment. In calculating the
"undrawn" amount of any Lender's Commitment for purposes of
clause (b) of this definition, any reduction in the actual
availability of such Lender's Commitment caused by outstanding
Money Market Loans shall be disregarded.
"Facility Fee Rate": on any day, the rate per annum
set forth below opposite the applicable Rating in effect on
such day:
Rating Facility Fee Rate
------ -----------------
Rating I .07%
Rating II .075
Rating III .09
<PAGE>
8
Rating IV .11
Rating V .15
Rating VI .225
; provided, that if on any day more than one Rating would be
applicable, the Facility Fee Rate shall be determined on the
basis of the higher of such Ratings (i.e., the Rating having
the lower numerical designation), unless such higher Rating is
more than one Rating category higher than the lower of such
Ratings, in which event the Facility Fee Rate will be
determined on the basis of the median Rating (or the higher of
the intermediate Ratings if there is no median Rating).
"Federal Funds Rate": for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business
Day next succeeding such day, provided that (a) if such day is
not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next
preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day, and (b) if no such rate is so
published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate
quoted to The Chase Manhattan Bank on such day on such
transactions as determined by the Administrative Agent.
"GAAP": generally accepted accounting principles as
defined and determined in accordance with subsection 1.2(b).
"Guarantee": by any Person, any obligation, contingent
or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of
such Person (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (b) entered into for the purpose of
assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided
that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances": any toxic, radioactive,
caustic or otherwise hazardous substance, including petroleum,
its derivatives, by-products and other hydrocarbons, or any
substance having any constituent elements displaying any of the
foregoing characteristics.
<PAGE>
9
"Interest Payment Date": (a) as to any Base Rate Loan,
the last day of each March, June, September and December, (b)
as to any Eurodollar Loan having an Interest Period of three
months or less, the last day of such Interest Period, (c) as to
any Eurodollar Loan having an Interest Period longer than three
months, each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and the
last day of such Interest Period, (d) as to any Money Market
Loan having an Interest Period of three months or 90 days, as
the case may be, or less, the last day of such Interest Period
and (e) as to any Money Market Loan having an Interest Period
longer than three months or 90 days, as the case may be, each
day which is three months, or a whole multiple thereof, after
the first day of such Interest Period and the last day of such
Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loan:
(i) in respect of any Revolving Credit
Loan borrowed as or converted into a Eurodollar Loan,
the period commencing on the borrowing or conversion
date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six
months thereafter (or such shorter period requested by
the Borrower and approved by the Administrative Agent
and the Required Lenders), as selected (or requested)
by the Borrower in its Notice of Revolving Credit
Borrowing or Notice of Eurodollar Conversion, as the
case may be, given with respect thereto; and
(ii) in respect of any Eurodollar Loan
continued as a Eurodollar Loan for a subsequent
Interest Period, each period commencing on the last day
of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six
months thereafter (or such shorter period requested by
the Borrower and approved by the Administrative Agent
and the Required Lenders), as selected (or requested)
by the Borrower in its Notice of Eurodollar
Continuation given with respect thereto;
provided, that all of the foregoing provisions relating to
Interest Periods in respect of Eurodollar Loans are subject to
the following:
(A) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is
not a Eurodollar Business Day, such Interest Period
shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would
be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on
the immediately preceding Eurodollar Business Day;
(B) any Interest Period in respect of any
Eurodollar Loan that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
<PAGE>
10
(C) any Interest Period pertaining to a
Eurodollar Loan that begins on the last Eurodollar
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall, subject to clause (B) above, end on the last
Eurodollar Business Day of a calendar month;
(b) with respect to each Money Market LIBOR Loan, the
period commencing on the date of such Loan specified in the
applicable Notice of Money Market Borrowing and ending such
whole number of months thereafter as the Borrower may elect in
accordance with Section 3; provided, that all of the foregoing
provisions relating to Interest Periods in respect of Money
Market LIBOR Loans are subject to the following:
(i) any Interest Period pertaining to a
Money Market LIBOR Loan that would otherwise end on a
day that is not a Eurodollar Business Day shall be
extended to the next succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another
calendar month, in which case such Interest Period
shall end on the next preceding Eurodollar Business
Day;
(ii) any Interest Period pertaining to a
Money Market LIBOR Loan that begins on the last
Eurodollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day
in the calendar month at the end of such Interest
Period) shall, subject to clause (iii) below, end on
the last Eurodollar Business Day of a calendar month;
and
(iii) any Interest Period in respect of any
such Money Market Loan that would otherwise end after
the Termination Date shall end on the Termination Date;
and
(c) with respect to each Money Market Absolute Rate
Loan, the period commencing on the date of such Loan specified
in the applicable Notice of Money Market Borrowing and ending
such number of days thereafter (but not less than 1 nor more
than 365 days) as the Borrower may elect in accordance with
Section 3; provided, that all of the foregoing provisions
relating to Interest Periods in respect of Money Market
Absolute Rate Loans are subject to the following:
(i) any Interest Period pertaining to a
Money Market Absolute Rate Loan that would otherwise
end on a day that is not a Eurodollar Business Day
shall be extended to the next succeeding Eurodollar
Business Day; and
(ii) any Interest Period in respect of
any such Money Market Loan that would otherwise end
after the Termination Date shall end on the Termination
Date.
<PAGE>
11
"Interest Rate Agreement": an interest rate protection
agreement, interest rate future, interest rate option, interest
rate cap or other interest rate hedge arrangement, providing to
the Borrower protection against increases in interest rates.
"Internal Revenue Code": the Internal Revenue Code of
1986, as amended, or any successor statute.
"Invitation for Money Market Quotes": each request by
the Borrower, delivered by the Administrative Agent, for
Lenders to submit bids to make Money Market Loans, which shall
contain the information in respect of such requested Money
Market Loans specified in Exhibit B and shall be delivered to
the Lenders in writing, by telecopy, or by telephone,
immediately confirmed by telecopy.
"Lenders": as defined in the Preamble to this
Agreement; such term shall include Lenders that are parties to
this Agreement on the date hereof and Lenders that become
parties to this Agreement pursuant to subsection 11.6(c) or
subsection 2.4.
"LIBOR Auction": a solicitation of Money Market Quotes
setting forth Money Market Margins based on the Eurodollar Rate
pursuant to Section 3.
"Lien": any mortgage, pledge, hypothecation,
assignment (to the extent such assignment is intended to secure
an obligation of any Person), encumbrance, lien (statutory or
other), charge or other security interest or any preference,
priority or other security agreement or, if they have the same
economic effect as any of the foregoing, any preferential
arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title
retention agreement and any capitalized lease).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Material Plan": at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $20,000,000.
"Material Subsidiary": Burlington Northern Inc.,
Burlington Northern Railroad, Santa Fe Pacific Corporation,
Santa Fe Railroad, BN Leasing Corporation and any other
Subsidiary of the Borrower the consolidated assets of which, as
would be shown in a consolidated balance sheet as at the last
day of its most recently ended fiscal year determined in
accordance with GAAP, are in excess of 5% of Consolidated
Tangible Net Worth as of the last day of the most recently
ended fiscal year, provided that notwithstanding the foregoing,
neither SFP Pipeline Holdings, Inc. or any of its Subsidiaries
nor Santa Fe Receivables Corporation shall be deemed to be a
Material Subsidiary. Unless otherwise specified, references in
this Agreement to "Material Subsidiary" shall be references to
a Material Subsidiary of the Borrower.
"Money Market Absolute Rate": as defined in subsection
3.4(b)(iv).
<PAGE>
12
"Money Market Absolute Rate Loan": a Loan to be made
by a Lender pursuant to an Absolute Rate Auction.
"Money Market Lending Office": as to each Lender, its
Domestic Lending Office or such other office, branch or
affiliate of such Lender as it may hereafter designate as its
Money Market Lending Office by notice to the Borrower and the
Administrative Agent; provided that any Lender may from time to
time by notice to the Borrower and the Administrative Agent
designate separate Money Market Lending Offices for its Money
Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such
Lender shall be deemed to refer to either or both of such
offices, as the context may require.
"Money Market LIBOR Loan": a Loan to be made by a
Lender pursuant to a LIBOR Auction (including such a loan
bearing interest at the Base Rate pursuant to clause (ii) of
the last sentence of subsection 4.10).
"Money Market Loan": a Money Market LIBOR Loan or a
Money Market Absolute Rate Loan.
"Money Market Margin": as defined in subsection
3.4(b)(iii).
"Money Market Note": as defined in subsection 4.9(d).
"Money Market Quote": each offer by a Lender to make
Money Market Loans pursuant to an Invitation for Money Market
Quotes, which Money Market Quote shall contain the information
specified in Exhibit C and shall be delivered to the
Administrative Agent by telecopy.
"Money Market Quote Request": each request by the
Borrower for Lenders to submit bids to make Money Market Loans,
which shall contain the information in respect of such
requested Money Market Loans specified in Exhibit A and shall
be delivered to the Administrative Agent by telecopy.
"Moody's": Moody's Investors Service, Inc.
"Moody's Rating": for any day, the rating of the
Borrower's senior unsecured, non-credit-enhanced debt by
Moody's in effect at 9:00 A.M., New York City time, on such
day; provided, that if such debt of the Borrower shall not be
rated by such rating agency, such Rating shall be such rating
agency's counterparty or similar rating specifically assigned
by such rating agency to the Borrower. If Moody's shall have
changed its system of classifications after the date hereof,
the Moody's Rating shall be considered to be at or above a
specified level if it is at or above the new rating which most
closely corresponds to the specified level under the old rating
system.
<PAGE>
13
"Multiemployer Plan": at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA
to which (a) any member of the ERISA Group is then making or
accruing an obligation to make contributions or (b) any Person,
who was at the time of such contribution a member of the ERISA
Group, has within the preceding five plan years made
contributions.
"New Lender": as defined in subsection 2.4(b).
"Notes": the collective reference to the Revolving
Credit Notes and the Money Market Notes.
"Notice of Base Rate Conversion": as defined in
subsection 4.5(a); each such notice shall be delivered in
writing or by telecopy and shall specify the principal amount
of the Eurodollar Loans being converted to Base Rate Loans
pursuant thereto.
"Notice of Eurodollar Continuation": as defined in
subsection 4.5(b); each such notice shall be delivered in
writing or by telecopy and shall specify the length or lengths
of the Interest Periods to be applicable to the Eurodollar
Loans being continued pursuant thereto.
"Notice of Eurodollar Conversion": as defined in
subsection 4.5(a); each such notice shall be delivered in
writing or by telecopy and shall specify the principal amount
of Base Rate Loans being converted to Eurodollar Loans pursuant
thereto and the length or lengths of the initial Interest
Period(s) applicable thereto.
"Notice of Money Market Borrowing": each confirmation
by the Borrower of its acceptance of Money Market Quotes, which
Notice of Money Market Borrowing shall be substantially in the
form of Exhibit D and shall be delivered to the Administrative
Agent by telecopy.
"Notice of Revolving Credit Borrowing": an irrevocable
notice from the Borrower, delivered pursuant to subsection 2.2,
requesting the Lenders to make Revolving Credit Loans; each
such notice shall be delivered in writing or by telecopy and
shall specify (i) the amount of such Loans, (ii) whether such
Loans are to be initially Eurodollar Loans, Base Rate Loans or
a combination thereof, and (iii) if such Loans are to be
entirely or partly Eurodollar Loans, the respective amounts of
each such Type of Loan and the length of the initial Interest
Period for such Eurodollar Loans.
"Offered Increase Amount": as defined in subsection
2.4(a).
"Participant": as defined in subsection 11.6(b).
"PBGC": the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under
ERISA.
<PAGE>
14
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other
entity of whatever nature.
"Pipeline Partners": Santa Fe Pacific Pipeline
Partners, L.P., a Delaware limited partnership.
"Plan": at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV
of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or
contributed to, by any Person which was at the time of such
maintenance or contribution a member of the ERISA Group for
employees of any Person which was at such time a member of the
ERISA Group.
"Prime Rate": the rate of interest publicly announced
from time to time by The Chase Manhattan Bank as its prime rate
at its principal office in New York City.
"Rating": as applicable, Rating I, Rating II, Rating
III, Rating IV, Rating V or Rating VI.
"Rating I": applies on any day on which the S&P Rating
is at or above A and the Moody's Rating is at or above A2.
"Rating II": applies on any day on which (i) the S&P
Rating is A- or above or the Moody's Rating is A3 or above and
(ii) Rating I does not apply.
"Rating III": applies on any day on which the S&P
Rating is BBB+ or the Moody's Rating is Baa1.
"Rating IV": applies on any day on which the S&P
Rating is BBB or the Moody's Rating is Baa2.
"Rating V": applies on any day on which the S&P Rating
is BBB- or the Moody's Rating is Baa3.
"Rating VI": applies on any day on which none of
Rating I, Rating II, Rating III, Rating IV or Rating V applies
(including, without limitation, any day on which there is no
Moody's Rating and no S&P Rating).
"Re-Allocation Date": as defined in subsection 2.4(d).
"Receivables Documents": a receivables purchase
agreement entered into by the Borrower, a Selling Subsidiary
and/or a Receivables Subsidiary and each other
<PAGE>
15
instrument, agreement and other document entered into by the
Borrower or any Selling Subsidiary or Receivables Subsidiary
relating to the transactions contemplated by such receivables
purchase agreement, including but not limited to the transfer
of the Receivables Program Assets by the Borrower and the
Selling Subsidiaries pursuant to such receivables purchase
agreement.
"Receivables Program Assets": (a) all rights of the
Borrower or any Selling Subsidiary to payments (whether
constituting accounts, chattel paper, instruments, general
intangibles or otherwise, and including the right to payment of
any interest or finance charges) which are transferred by the
Borrower, a Selling Subsidiary or a Receivables Subsidiary
pursuant to the Receivables Documents, (b) all rights, title
and interest of the Borrower, a Selling Subsidiary or a
Receivables Subsidiary in goods relating to a sale that gave
rise to such rights to payment, (c) security interests or liens
(and the property subject thereto) purporting to secure such
rights to payment, (d) all guaranties and other agreements or
arrangements of whatever character from time to time supporting
such rights to payment, (e) lock-boxes and bank accounts of the
Borrower, any Selling Subsidiary or a Receivables Subsidiary in
which proceeds of any of the foregoing are held, and all
investments from such accounts and other claims and rights in
connection therewith, (f) rights and interests of a Receivables
Subsidiary under Receivables Documents, and (g) all collections
(including recoveries) and other proceeds of the assets
described in the foregoing clauses.
"Receivables Program Obligations": (a) notes, trust
certificates, undivided interests, partnership interests or
other interests representing the right to be paid a specified
principal amount from the Receivables Program Assets, and (b)
related obligations of the Borrower, a Subsidiary or a Special
Purpose Vehicle (including, without limitation, rights in
respect of interest or yield, breach of warranty claims and
expense reimbursement and indemnity provisions).
"Receivables Subsidiary": a special purpose
Wholly-Owned Subsidiary created in connection with the
transactions contemplated by an Accounts Receivable Financing,
which Subsidiary engages in no activities other than those
incidental to such Accounts Receivable Financing.
"Reference Lenders": The Chase Manhattan Bank, Morgan
Guaranty Trust Company of New York and Union Bank of
Switzerland.
"Register": as defined in subsection 11.6(f).
"Regulation G": Regulation G of the Board of Governors
of the Federal Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors
of the Federal Reserve System as in effect from time to time.
<PAGE>
16
"Required Lenders": at any time Lenders the Commitment
Percentages of which aggregate at least 51%.
"Revolving Credit Loans": as defined in subsection
2.1.
"Revolving Credit Note": as defined in subsection 4.9(d).
"S&P": Standard & Poor's Ratings Group.
"S&P Rating": for any day, the rating of the
Borrower's senior unsecured, non credit-enhanced debt by S&P in
effect at 9:00 A.M., New York City time, on such day; provided,
that if such debt of the Borrower shall not be rated by such
rating agency, such Rating shall be such rating agency's
counterparty or similar rating specifically assigned by such
rating agency to the Borrower. If S&P shall have changed its
system of classifications after the date hereof, the S&P Rating
shall be considered to be at or above a specified level if it
is at or above the new rating which most closely corresponds to
the specified level under the old rating system.
"Santa Fe Railroad": The Atchison, Topeka and Santa Fe
Railway Company, a Delaware corporation, and its successors.
"Selling Subsidiary": any Subsidiary other than a
Receivables Subsidiary which is a party to a Receivables
Document.
"Special Purpose Vehicle": a trust, partnership or
other special purpose Person established by the Borrower and/or
its Subsidiaries to implement an Accounts Receivable Financing.
"Specified Obligations": with respect to any Person,
the collective reference to (a) the Debt of such Person and (b)
the obligations of such Person to make payments to
counterparties under Interest Rate Agreements in the event of
the occurrence of a termination event thereunder.
"Subsidiary": any corporation or other entity of which
securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly
or indirectly owned by the Borrower (or, if such term is used
with reference to any other Person, by such other Person).
Unless otherwise specified, references in this Agreement to
"Subsidiary" shall be references to a Subsidiary of the
Borrower.
"Termination Date": the last day of the Commitment
Period (or such earlier date on which the Commitments shall
terminate pursuant to the terms of this Agreement).
<PAGE>
17
"364-Day Facility": the Amended and Restated 364-Day
Revolving Credit Agreement, dated the date hereof, among the
Borrower and the lenders, co-arrangers, and agents parties
thereto, as the same may be amended, supplemented or modified
from time to time.
"Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on
the same day).
"Type": (a) as to any Revolving Credit Loan, its
nature as a Base Rate Loan or a Eurodollar Loan and (b) as to
any Money Market Loan, its nature as a Money Market LIBOR Loan
or a Money Market Absolute Rate Loan.
"Unfunded Liabilities": with respect to any Plan at
any time, the amount (if any) by which (a) the value of all
benefit liabilities under such Plan, determined on a plan
termination basis using the assumptions prescribed by the PBGC
for purposes of Section 4044 of ERISA, exceeds (b) the fair
market value of all Plan assets allocable to such liabilities
under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the
ERISA Group to the PBGC or any other Person under Title IV of
ERISA.
"United States": the United States of America,
including the States and the District of Columbia, but
excluding its territories and possessions.
"Wholly-Owned Subsidiary": any Subsidiary all of the
shares of capital stock or other ownership interests of which
(except directors' qualifying shares) are at the time directly
or indirectly owned by the Borrower (or, if such term is used
with reference to any other Person, by such other Person).
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in any Note, certificate or other
document made or delivered pursuant hereto.
(b) Unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with generally
accepted accounting principles as in effect from time to time in the
United States, applied on a basis consistent (except for changes
concurred with by the Borrower's independent public accountants) with
the most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Lenders;
provided, that if the Borrower notifies the Administrative Agent that
the Borrower wishes to amend any covenant in Section 8 to eliminate the
effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent notifies the
Borrower that the
<PAGE>
18
Required Lenders wish to amend Section 8 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the
basis of generally accepted accounting principles in effect immediately
before the relevant change in generally accepted accounting principles
became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Borrower and the Required
Lenders.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references are
to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such
terms.
SECTION 2. THE REVOLVING CREDIT LOANS
2.1 The Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit
loans ("Revolving Credit Loans") to the Borrower from time to time
during the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed the amount of such Lender's Commitment;
provided, that no Revolving Credit Loan may be made if, after giving
effect to such Loan and to any simultaneous repayment of outstanding
Loans, the aggregate outstanding principal amount of Revolving Credit
Loans and Money Market Loans would exceed the aggregate amount of the
Commitments. During the Commitment Period the Borrower may use the
Commitments by borrowing Revolving Credit Loans, prepaying Revolving
Credit Loans in whole or in part, and reborrowing Revolving Credit
Loans, all in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time
be (i) Eurodollar Loans, (ii) Base Rate Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsections 2.2 and 4.5.
2.2 Procedure for Revolving Credit Borrowing. The
Borrower shall request Revolving Credit Loans by delivering a Notice of
Revolving Credit Borrowing to the Administrative Agent prior to 10:00
A.M., New York City time, (a) three Eurodollar Business Days prior to
the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans or (b) on
such Borrowing Date, otherwise, requesting the Lenders to make Revolving
Credit Loans on such Borrowing Date. Upon receipt of such Notice of
Revolving Credit Borrowing the Administrative Agent shall promptly
notify each Lender thereof, and not later than 12:00 noon, New York City
time, on such Borrowing Date each Lender shall make available to the
Administrative Agent at its office specified in subsection 11.2 the
amount of the Revolving Credit Loan to be made by such Lender on such
Borrowing Date, in immediately available funds. The Administrative
Agent shall on such Borrowing Date make available to the Borrower the
aggregate of the
<PAGE>
19
amounts made available to the Administrative Agent by the Lenders, in
like funds as received by the Administrative Agent.
2.3 Repayment of Revolving Credit Loans. The Borrower
hereby unconditionally promises to pay to the Administrative Agent, for
the account of each Lender, on the Termination Date, the aggregate
principal amount of the Revolving Credit Loans of such Lender
outstanding on such date.
2.4 Commitment Increases. (a) In the event that the
Borrower wishes to increase the aggregate Commitments at any time that
no Default or Event of Default has occurred and is continuing, it shall
notify the Administrative Agent in writing of the amount (the "Offered
Increase Amount") of such proposed increase (such notice, a "Commitment
Increase Notice"). The Borrower may, at its election, (i) offer one or
more of the Lenders the opportunity to participate in all or a portion
of the Offered Increase Amount pursuant to subsection (c) below and/or
(ii) with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld), offer one or more additional banks,
financial institutions or other entities the opportunity to participate
in all or a portion of the Offered Increase Amount pursuant to paragraph
(b) below. Each Commitment Increase Notice shall specify which Lenders
and/or banks, financial institutions or other entities the Borrower
desires to participate in such commitment increase. The Borrower or, if
requested by the Borrower, the Administrative Agent will notify such
Lenders and/or banks, financial institutions or other entities of such
offer.
(b) Any additional bank, financial institution or
other entity which the Borrower selects to offer participation in the
increased Commitments and which elects to become a party to this
Agreement and obtain a Commitment in an amount so offered and accepted
by it pursuant to subsection 2.4(a)(ii) shall execute a New Lender
Supplement with the Borrower and the Administrative Agent, substantially
in the form of Exhibit H, whereupon such bank, financial institution or
other entity (herein called a "New Lender") shall become a Lender for
all purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement, and
Schedule I shall be deemed to be amended to add the name and Commitment
of such New Lender, provided that the Commitment of any such new Lender
shall be in an amount not less than $10,000,000.
(c) Any Lender which accepts an offer to it by the
Borrower to increase its Commitment pursuant to subsection 2.4(a)(i)
shall, in each case, execute a Commitment Increase Supplement with the
Borrower and the Administrative Agent, substantially in the form of
Exhibit I, whereupon such Lender shall be bound by and entitled to the
benefits of this Agreement with respect to the full amount of its
Commitment as so increased, and Schedule I shall be deemed to be amended
to so increase the Commitment of such Lender.
(d) If any bank, financial institution or other entity
becomes a New Lender pursuant to subsection 2.4(b) or any Lender's
Commitment is increased pursuant to subsection 2.4(c), additional
Revolving Credit Loans made on or after the effectiveness thereof (the
"Re-Allocation Date") shall be made pro rata based on the Commitment
Percentages in effect on
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20
and after such Re-Allocation Date (except to the extent that any such
pro rata borrowings would result in any Lender making an aggregate
principal amount of Revolving Credit Loans in excess of its Commitment,
in which case such excess amount will be allocated to, and made by, such
new Lenders and/or Lenders with such increased Commitments to the extent
of, and pro rata based on, their respective Commitments otherwise
available for Revolving Credit Loans), and continuations of Eurodollar
Loans outstanding on such Re-Allocation Date shall be effected by
repayment of such Eurodollar Loans on the last day of the Interest
Period applicable thereto and the making of new Eurodollar Loans pro
rata based on such new Commitment Percentages. In the event that on any
such Re-Allocation Date there is an unpaid principal amount of Base Rate
Loans, the Borrower shall make prepayments thereof and borrowings of
Base Rate Loans so that, after giving effect thereto, the Base Rate
Loans outstanding are held pro rata based on such new Commitment
Percentages. In the event that on any such Re- Allocation Date there is
an unpaid principal amount of Eurodollar Loans, such Eurodollar Loans
shall remain outstanding with the respective holders thereof until the
expiration of their respective Interest Periods (unless the Borrower
elects to prepay any thereof in accordance with the applicable
provisions of this Agreement), and interest on and repayments of such
Eurodollar Loans will be paid thereon to the respective Lenders holding
such Eurodollar Loans pro rata based on the respective principal amounts
thereof outstanding.
(e) Notwithstanding anything to the contrary in this
subsection 2.4, (i) in no event shall any transaction effected pursuant
to this subsection 2.4 cause (A) the aggregate Commitments to exceed
$2,000,000,000 or (B) the sum of the aggregate Commitments plus the
aggregate Commitments then in effect under (and as defined in) the
364-Day Facility to exceed $2,500,000,000 and (ii) no Lender shall have
any obligation to increase its Commitment unless it agrees to do so in
its sole discretion.
SECTION 3. THE MONEY MARKET LOANS
3.1 Money Market Option. The Borrower may, as set
forth in this Section, at any time request the Administrative Agent to
solicit offers from all the Lenders to make Money Market Loans to the
Borrower. The Lenders may, but shall have no obligation to, make such
offers, and the Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section. No Money
Market Loan may be made if, after giving effect to such Loan and to any
simultaneous repayment of outstanding Loans, the aggregate outstanding
principal amount of Revolving Credit Loans and Money Market Loans would
exceed the aggregate amount of the Commitments.
3.2 Money Market Quote Request. When the Borrower
wishes to request offers to make Money Market Loans under this Section,
it shall transmit to the Administrative Agent by facsimile transmission
a Money Market Quote Request so as to be received no later than Noon,
New York City time, (a) four Eurodollar Business Days prior to the
Borrowing Date proposed therein, in the case of a LIBOR Auction or (b)
one Business Day prior to the Borrowing Date proposed therein, in the
case of an Absolute Rate Auction (or (x) in either case, such other time
or date as the Borrower and the Administrative Agent shall have
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21
mutually agreed and shall have notified to the Lenders not later than
the date of the Money Market Quote Request for the first LIBOR Auction
or Absolute Rate Auction for which such change is to be effective and
(y) in the case of an Absolute Rate Auction for a proposed Borrowing
Date occurring on the Closing Date, not later than 9:00 A.M., New York
City time, on the Closing Date), specifying:
(i) the proposed Borrowing Date, which shall be a
Eurodollar Business Day in the case of a LIBOR Auction or a
Domestic Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Loans, which shall
be $5,000,000 or a larger whole multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period, and
(iv) whether the Money Market Quotes requested are
to set forth a Money Market Margin or a Money Market Absolute
Rate.
3.3 Invitation for Money Market Quotes. The
Administrative Agent, promptly upon receipt of any Money Market Quote
Request, shall send to the Lenders by facsimile transmission an
Invitation for Money Market Quotes, which shall constitute an invitation
by the Borrower to each Lender to submit Money Market Quotes offering to
make the Money Market Loans to which such Money Market Quote Request
relates in accordance with this Section.
3.4 Submission and Contents of Money Market Quotes.
(a) Each Lender may submit, as it may elect in its sole discretion, a
Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection 3.4
and must be submitted to the Administrative Agent by facsimile
transmission at its offices specified in or pursuant to subsection 11.2
not later than (i) 10:00 A.M., New York City time, three Eurodollar
Business Days prior to the proposed Borrowing Date, in the case of a
LIBOR Auction, or (ii) 10:00 A.M., New York City time, on the proposed
Borrowing Date, in the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Lenders
not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in
the capacity of a Lender may be submitted, and may only be submitted, if
the Administrative Agent or such affiliate notifies the Borrower of the
terms of the offer or offers contained therein not later than 15 minutes
prior to the deadline for the other Lenders. Subject to Sections 6 and
9, any Money Market Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on the instructions of
the Borrower.
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22
(b) Each Money Market Quote shall in any case specify:
(i) the proposed Borrowing Date,
(ii) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount (A)
may be greater than or less than the Commitment of the quoting
Lender, (B) must be $5,000,000 or a larger whole multiple of
$1,000,000, and (C) may be subject to an aggregate limitation
as to the principal amount of Money Market Loans for which
offers being made by such quoting Lender may be accepted,
(iii) in the case of a LIBOR Auction, the margin above
or below the applicable Eurodollar Rate (the "Money Market
Margin") offered for each such Money Market Loan, expressed as
a percentage (specified to the nearest 1/16 of 1%) to be added
to or subtracted from the Eurodollar Rate,
(iv) in the case of an Absolute Rate Auction, the rate
of interest per annum (specified to the nearest 1/10,000 of 1%)
(the "Money Market Absolute Rate") offered for each such Money
Market Loan, and
(v) the identity of the quoting Lender.
A Money Market Quote may set forth up to three separate offers by the
quoting Lender with respect to each Interest Period specified in the
related Invitation for Money Market Quotes.
(c) Any Money Market Quote shall be disregarded if it:
(i) is not substantially in conformity with Exhibit C
or does not specify all of the information required by
subsection 3.4(b);
(ii) contains qualifying, conditional or similar
language;
(iii) proposes terms other than or in addition to
those set forth in the applicable Invitation for Money Market
Quotes; or
(iv) arrives after the time set forth in subsection
3.4(a).
3.5 Notice to Borrower. The Administrative Agent
shall promptly notify the Borrower of the terms (a) of any Money Market
Quote submitted by a Lender that is in accordance with subsection 3.4
and (b) of any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such Lender
with respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the Administrative
Agent unless such subsequent Money Market Quote is submitted solely to
correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (i) the
aggregate
<PAGE>
23
principal amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related Money Market
Quote Request, (ii) the respective principal amounts and Money Market
Margins or Money Market Absolute Rates, as the case may be, so offered
and (iii) if applicable, limitations on the aggregate principal amount
of Money Market Loans for which offers in any single Money Market Quote
may be accepted.
3.6 Acceptance and Notice by Borrower. Not later than
11:00 A.M., New York City time, (a) three Eurodollar Business Days prior
to the proposed Borrowing Date, in the case of a LIBOR Auction or (b) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have notified
to the Lenders not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective), the Borrower shall notify the Administrative
Agent of its acceptance or non-acceptance of the offers notified to it
pursuant to subsection 3.5. In the case of acceptance, such notice
shall be a Notice of Money Market Borrowing and shall specify the
aggregate principal amount of offers for each Interest Period that are
accepted. The Borrower may accept any Money Market Quote in whole or in
part; provided that:
(i) the aggregate principal amount of Money Market
Loans made pursuant to a Money Market Quote Request may not
exceed the applicable amount set forth in such Money Market
Quote Request,
(ii) the principal amount of Money Market Loans made
on a Borrowing Date pursuant to a Money Market Quote Request
must be $5,000,000 or a larger whole multiple of $1,000,000,
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market
Absolute Rates, as the case may be, and
(iv) the Borrower may not accept any offer that is
required to be disregarded as described in subsection 3.4(c) or
that otherwise fails to comply substantially with the
requirements of this Agreement.
3.7 Allocations. If offers are made by two or more
Lenders with the same Money Market Margins or Money Market Absolute
Rates, as the case may be, for a greater aggregate principal amount than
the amount in respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market Loans in respect
of which such offers are accepted shall be allocated by the
Administrative Agent among such Lenders as nearly as possible (in whole
multiples of $1,000,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
Upon acceptance, notice and allocation of Money Market Quotes pursuant
to and in accordance with subsections 3.6 and 3.7, the Administrative
<PAGE>
24
Agent will, in accordance with its usual practice, notify each Lender
whose Money Market Quote has been accepted of the amount of its Money
Market Quote accepted and allocated.
3.8 Certain Restrictions. The Borrower may request
offers to make Money Market Loans for up to five Interest Periods in a
single Money Market Quote Request.
3.9 Repayment of Money Market Loans. The Borrower
hereby unconditionally promises to pay to the Administrative Agent, for
the account of the relevant Lender, on the last day of the Interest
Period with respect thereto, the aggregate principal amount of each
Money Market Loan of such Lender.
SECTION 4. CERTAIN PROVISIONS APPLICABLE TO
THE COMMITMENTS AND THE LOANS
4.1 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee for
the period from and including the Closing Date to the date on which the
Commitments have terminated and all Loans have been repaid in full,
computed at the Facility Fee Rate, in each case on the average daily
Facility Fee Calculation Amount of such Lender during the period for
which payment is made, payable in arrears on the last day of each March,
June, September and December and on the date on which the Commitments
have terminated and all Loans have been repaid in full, commencing on
the first of such dates to occur after the date of this Agreement.
(b) The Borrower agrees to pay to each Agent and each
Co-Arranger the fees on the dates and in the amounts previously agreed
to in writing by the Borrower and such respective Persons.
4.2 Minimum Borrowing Amounts. Each borrowing under
the Commitments shall be in an amount equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof.
4.3 Termination or Reduction of Commitments. The
Borrower shall have the right, upon notice to the Administrative Agent
not later than 11:00 A.M., New York City time, on the date of such
action, to terminate any of the Commitments or, from time to time, to
reduce the amount of any of the Commitments; provided, that no reduction
of the Commitments shall be permitted if, after giving effect thereto
and to any simultaneous repayment of Revolving Credit Loans and/or Money
Market Loans, the aggregate outstanding principal amount of the
Revolving Credit Loans and Money Market Loans would exceed the
Commitments. Any reduction of any of the Commitments shall be in an
amount equal to $10,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall reduce permanently the Commitments then in effect.
The Administrative Agent will, in accordance with its usual practice,
notify the Lenders of each such notice of termination or reduction.
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25
4.4 Optional Prepayments; Mandatory Prepayments. (a)
The Borrower may, (i) upon notice to the Administrative Agent not later
than 11:00 A.M., New York City time, on the date of prepayment, prepay
any Base Rate Loans (or any Money Market Loans bearing interest based
upon the Base Rate pursuant to clause (ii) of the last sentence of
subsection 4.10) or (ii) upon at least three Eurodollar Business Days'
notice to the Administrative Agent, prepay any Eurodollar Loans, in each
case in whole or in part in amounts aggregating $5,000,000 or any larger
whole multiple of $1,000,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of
prepayment. Upon prepaying any Eurodollar Loan on any date other than
the last day of an Interest Period applicable thereto, the Borrower
shall be obligated to pay the amounts described in subsection 4.16.
(b) Except as provided in subsection 4.4(a) with
respect to a Money Market Loan bearing interest based upon the Base Rate
pursuant to clause (ii) of the last sentence of subsection 4.10 and in
subsection 4.4(d), the Borrower may not prepay all or any portion of the
principal amount of any Money Market Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to
this subsection 4.4, the Administrative Agent shall promptly notify each
Lender of the contents thereof and of such Lender's ratable share (if
any) of such prepayment, and such notice shall not thereafter be
revocable by the Borrower.
(d) If a Change of Control shall occur with respect to
the Borrower, the Administrative Agent shall, upon the request of the
Required Lenders, by notice to the Borrower given within six months
after the date of such Change of Control, terminate the Commitments,
whereupon the Commitments shall immediately terminate, and any Loans
then outstanding (together with accrued interest thereon) shall become
due and payable on the fifth Eurodollar Business Day after such notice
is given.
4.5 Conversion and Continuation Options. (a) The
Borrower may, on the last day of any Interest Period with respect
thereto, convert Eurodollar Loans to Base Rate Loans by giving notice
thereof (a "Notice of Base Rate Conversion") to the Administrative Agent
not later than 10:00 A.M., New York City time, on the last day of the
then current Interest Period in respect of the Eurodollar Loans being
converted. The Borrower may from time to time convert Base Rate Loans
to Eurodollar Loans by giving notice thereof (a "Notice of Eurodollar
Conversion") to the Administrative Agent at least three Eurodollar
Business Days prior to the first day of the Interest Period to be
applicable to such Loans. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. All or
any part of outstanding Eurodollar Loans and Base Rate Loans may be
converted as provided herein, provided that no Loan may be converted
into a Eurodollar Loan when any Event of Default has occurred and is
continuing.
(b) The Borrower may continue any Eurodollar Loans as
such upon the expiration of the then current Interest Period with
respect thereto by giving notice thereof (a "Notice of Eurodollar
Continuation") to the Administrative Agent at least three Eurodollar
Business Days prior to the last day of such then current Interest
Period, provided that no
<PAGE>
26
Eurodollar Loan may be continued as such when any Event of Default has
occurred and is continuing, and provided, further, that if the Borrower
shall fail to give such Notice of Eurodollar Continuation or if such
continuation is not permitted pursuant to the preceding proviso, such
Loans shall be automatically converted to Base Rate Loans on the last
day of such then expiring Interest Period.
4.6 Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant
to such elections so that, after giving effect thereto, the aggregate
principal amount of Eurodollar Loans comprising each Tranche shall be
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
Not more than twenty Tranches may be outstanding at any time.
4.7 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest during each Interest Period with
respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin.
(c) Each Money Market Loan shall bear interest at the
applicable rate set forth in the Notice of Money Market Borrowing
applicable thereto.
(d) If any principal amount of any Loan shall not be
paid when due, from and after the date on which such principal amount
was due (i) the outstanding principal amount of all Eurodollar Loans and
Money Market Loans shall bear interest at 2% above the rate that would
otherwise be applicable thereto until the earlier of (A) the date on
which such overdue principal amount is paid in full and (B) the last day
of the respective Interest Periods applicable to such outstanding
Eurodollar Loans and Money Market Loans, and thereafter the outstanding
principal amount of all Eurodollar Loans and Money Market Loans shall
bear interest at a rate equal to 2% above the rate applicable at such
time to Base Rate Loans until such overdue principal amount is paid in
full (as well after as before judgment) and (ii) the outstanding
principal amount of all Base Rate Loans shall bear interest at a rate
equal to 2% above the rate applicable at such time to Base Rate Loans
until such overdue principal amount is paid in full (as well after as
before judgment). If all or a portion of (i) any interest payable on
any Loan or (ii) any facility fee or other amount payable hereunder,
shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum which is 2% above the rate applicable at such time to
Base Rate Loans, in each case from the date of such non-payment until
such amount is paid in full (as well after as before judgment).
(e) Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant to
paragraph (d) of this subsection shall be payable from time to time on
demand.
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27
4.8 Computation of Interest and Fees. (a) Facility
fees and, whenever it is calculated on the basis of the Prime Rate,
interest shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed; and, otherwise,
interest shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on
a Loan resulting from a change in the Base Rate shall become effective
as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify
the Borrower and the Lenders of the effective date and the amount of
each such change in the Base Rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the absence
of manifest error.
(c) If any Reference Lender shall for any reason no
longer have a Commitment or any Loans, such Reference Lender shall
thereupon cease to be a Reference Lender, and if, as a result, there
shall only be one Reference Lender remaining, the Administrative Agent
(after consultation with the Borrower and the Lenders) shall, by notice
to the Borrower and the Lenders, designate another Lender as a Reference
Lender so that there shall at all times be at least two Reference
Lenders.
(d) Each Reference Lender shall use its best efforts
to furnish quotations of rates to the Administrative Agent as
contemplated hereby. If any of the Reference Lenders shall be unable or
shall otherwise fail to supply such rates to the Administrative Agent
upon its request, the rate of interest shall, subject to the provisions
of subsection 4.10, be determined on the basis of the quotations of the
remaining Reference Lenders or Reference Lender.
4.9 Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice appropriate records evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of
such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this
Agreement and under any Note.
(b) The Administrative Agent shall maintain the
Register pursuant to subsection 11.6(f), and a record therein for each
Lender, in which shall be recorded (i) the amount of each Loan made
hereunder, the Type thereof and each Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent
hereunder from the Borrower and each Lender's share thereof.
(c) The records of each Lender maintained pursuant to
subsection 4.9(a) and the entries made by the Administrative Agent in
the Register shall, to the extent permitted by
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28
applicable law, be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender to maintain such records or the
Administrative Agent to maintain the Register or any such record, or any
error in either thereof, shall not in any manner affect the obligation
of the Borrower to repay (with applicable interest) the Loans made by
such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender, within thirty days after notification of such
request by the Administrative Agent to the Borrower, (i) a promissory
note of the Borrower evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit G-1 with appropriate
insertions (a "Revolving Credit Note"), and (ii) a promissory note of
the Borrower evidencing the Money Market Loans of such Lender,
substantially in the form of Exhibit G-2 with appropriate insertions (a
"Money Market Note").
4.10 Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Eurodollar Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the
Reference Lenders that deposits in Dollars (in the applicable
amounts) are not being offered by the Reference Lenders in the
relevant market for such Interest Period, or
(b) in the case of Revolving Credit Loans, Lenders
having 50% or more of the aggregate amount of the Commitments
advise the Administrative Agent that the Eurodollar Rate as
determined by the Administrative Agent will not adequately and
fairly reflect the cost to such Lenders of funding their
Eurodollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent
notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Lenders to make,
convert Loans into or continue Loans as, as the case may be, Eurodollar
Loans shall be suspended, and any Loan that was to be converted into, or
continued as, a Eurodollar Loan for such Interest Period shall, instead,
be continued as, or converted into, a Base Rate Loan on the first day of
such Interest Period. Unless the Borrower notifies the Administrative
Agent at least two Domestic Business Days before the first day of any
such Interest Period in respect of any requested Eurodollar Loan or
Money Market LIBOR Loan for which a Notice of Revolving Credit Borrowing
or Notice of Money Market Borrowing, as the case may be, has previously
been given that it elects not to borrow on such date, (i) if such
requested Loan is a Eurodollar Loan, such Loan shall instead be made as
a Base Rate Loan and (ii) if such requested Loan is a Money Market LIBOR
Loan, such Money Market LIBOR Loan shall bear interest for each day from
and including the first day to but excluding the last day of the
Interest Period applicable thereto at the rate applicable to Base Rate
Loans for such day.
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29
4.11 Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Eurodollar Lending Office)
with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall make it
unlawful or impossible for any Lender (or its Eurodollar Lending Office)
to make, maintain or fund its Eurodollar Loans and such Lender shall so
notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and the Administrative
Agent that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Eurodollar Loans shall be
suspended. Before giving any notice to the Administrative Agent
pursuant to this subsection, such Lender shall designate a different
Eurodollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. If such Lender shall
determine that it may not lawfully continue to maintain and fund any of
its outstanding Eurodollar Loans to maturity and shall so specify in
such notice, the Borrower shall prepay in full the then outstanding
principal amount of each such Eurodollar Loan on the date required by
law (as specified in such notice), together with accrued interest
thereon. Concurrently with prepaying each such Eurodollar Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal amount from
such Lender (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the other
Lenders), and such Lender shall make such a Base Rate Loan.
4.12 Increased Cost and Reduced Return. (a) If on or
after (i) the date hereof, in the case of any Revolving Credit Loan or
any obligation to make Revolving Credit Loans, or (ii) the date of the
related Money Market Quote, in the case of any Money Market Loan, the
adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any
Lender (or its Applicable Lending office) with any request or directive
(whether or not having the force of law) of any such authority, central
bank or comparable agency shall impose, modify or deem applicable any
reserve (including, without limitation, any such requirement imposed by
the Board of Governors of the Federal Reserve System, but excluding any
such reserve requirement in respect of Eurocurrency liabilities
described in paragraph (c) of this subsection 4.12), special deposit,
insurance assessment or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (or its
Applicable Lending Office) or on the interbank eurodollar market any
other condition affecting its Eurodollar Loans or Money Market LIBOR
Loans or its obligation to make such Loans and the result of any of the
foregoing is to increase the cost to such Lender (or its Applicable
Lending Office) of making or maintaining any such Loan, or to reduce the
amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement with respect thereto, by
an amount deemed by such Lender to be material, then, within 15 days
after demand by such Lender (with a copy to the
<PAGE>
30
Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender shall have determined that, after
the date hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or any
request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on
capital of such Lender (or its parent holding company) as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender (or its parent holding company) could have achieved but for such
adoption, change, request or directive (taking into consideration its
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender (or its parent holding company) for such
reduction.
(c) In addition to, and without duplication of,
amounts which may become payable from time to time pursuant to
paragraphs (a) and (b) of this subsection 4.12, the Borrower agrees to
pay to each Lender which requests compensation under this paragraph (c)
by notice to the Borrower, on the last day of each Interest Period with
respect to any Eurodollar Loan made by such Lender, at any time when
such Lender shall be required to maintain reserves against "Eurocurrency
liabilities" under Regulation D of the Board of Governors of the Federal
Reserve System (or, at any time when such Lender may be required by the
Board of Governors of the Federal Reserve System or by any other
governmental authority, whether within the United States or in another
relevant jurisdiction, to maintain reserves against any other category
of liabilities which includes deposits by reference to which the
Eurodollar Rate is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Lender
which includes any such Eurodollar Loans), an additional amount
(determined by such Lender's calculation or, if an accurate calculation
is impracticable, reasonable estimate using such reasonable means of
allocation as such Lender shall determine) equal to the actual costs, if
any, incurred by such Lender during such Interest Period as a result of
the applicability of the foregoing reserves to such Eurodollar Loans.
(d) Each Lender will promptly notify the Borrower and
the Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this subsection 4.12 and will designate a
different Applicable Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in
the judgment of such Lender, be otherwise disadvantageous to such
Lender; provided that if a Lender shall not have so notified the
Borrower within 90 days of such event, such Lender may not seek
compensation for any period beginning prior to the date which is 90 days
prior to the date upon which the Borrower is notified of such event. A
certificate of any Lender claiming compensation under this
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31
subsection and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging
and attribution methods.
(e) The provisions of this subsection shall survive
any termination of this Agreement.
4.13 Taxes. (a) Any and all payments by the Borrower
to or for the account of any Lender or the Administrative Agent
hereunder or under any Note shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings (subject to paragraph (g)
hereof), and all liabilities with respect thereto, excluding, in the
case of each Lender and the Administrative Agent, taxes imposed on or
measured by its net income, and franchise, value added or similar taxes
imposed on it, by a jurisdiction on the basis of a present or former
connection between such jurisdiction and the Lender or Administrative
Agent other than a connection arising solely from such Administrative
Agent or Lender having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any Note
(all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this subsection
4.13) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law
and (iv) the Borrower shall furnish to the Administrative Agent, at its
address referred to in subsection 11.2, the original or a certified copy
of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, or charges or similar levies which arise from any
payment made hereunder or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note (hereinafter
referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and
the Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this subsection
4.13) paid by such Lender or the Administrative Agent (as the case may
be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Administrative
Agent (as the case may be) makes written demand therefor. If any Lender
or the Administrative Agent receives any written demand from any taxing
authority asserting a liability for any Taxes or Other Taxes for which
such Lender or the Administrative Agent is entitled to an indemnity
under this paragraph (c), such Lender or Agent shall promptly furnish
the Borrower and the Administrative Agent with a copy of such demand.
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32
(d) If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Internal Revenue Code,
on or prior to the date of its execution and delivery of this Agreement
in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each
other Lender, and from time to time thereafter (but only so long as such
Lender remains lawfully able to do so), such Lender agrees with and in
favor of the Administrative Agent and the Borrower to deliver to the
Administrative Agent and the Borrower: (i) before the payment of any
interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which interest
may be paid under this Agreement, properly completed Internal Revenue
Service Forms 1001, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest; (ii) before
the payment of any interest is due in the first taxable year of such
Lender and in each succeeding taxable year of such Lender during which
interest may be paid under this Agreement, two properly completed and
executed copies of Internal Revenue Service Form 4224, or any successor
form prescribed by the Internal Revenue Service, certifying that the
income receivable pursuant to this Agreement is effectively connected
with the conduct of a trade or a business in the United States; or (iii)
such other form or forms as may be required under the Internal Revenue
Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax. Such Lender
agrees to promptly notify the Administrative Agent and the Borrower of
any change in circumstances which would modify or render invalid any
claimed exemption or reduction. In addition, in the event any Lender
that claims exemption from, or reduction of, withholding tax under a
United States tax treaty by providing Internal Revenue Service Form 1001
sells, assigns, grants a participation in, or otherwise transfers all or
part of the obligations of the Borrower to such Lender under this
Agreement or any Note, such Lender agrees to notify the Administrative
Agent and the Borrower of the percentage amount in which it is no longer
the beneficial owner of obligations of the Borrower to such Lender under
this Agreement or any Note. To the extent of such percentage amount, the
Administrative Agent and the Borrower will treat such Lender's Internal
Revenue Service Form 1001 as no longer valid. In the event any Lender
that claims exemption from United States withholding tax by filing
Internal Revenue Service Form 4224 with the Administrative Agent and the
Borrower sells, assigns, grants a participation in, or otherwise
transfers all or part of the obligations of the Borrower to such Lender
under this Agreement or any Note, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements
imposed by Sections 1441 and 1442 of the Internal Revenue Code. If the
Form 1001, Form 4224 or any other appropriate forms required to be
provided by a Lender at the time such Lender first becomes a party to
this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes. The Borrower shall not be required to pay any
amounts with respect to United States withholding taxes under subsection
(a) of this subsection 4.13 if the Lender shall have delivered to the
Borrower an Internal Revenue Service Form 1001 or 4224 and such Lender
was not actually entitled based on the law at the time of such delivery
to a reduced United States interest withholding tax.
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33
(e) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form pursuant to
subsection 4.13(d) (unless such failure is due to a change in treaty,
law or regulation occurring subsequent to the date on which a form
originally was required to be provided), such Lender shall not be
entitled to indemnification under subsection 4.13(a) with respect to
Taxes imposed by the United States. Should a Lender which is otherwise
exempt from or subject to a reduced rate of withholding tax become
subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
(f) In the event that the Borrower is obligated to
make an indemnification payment pursuant to this subsection 4.13 to any
Lender and the Lender receives a refund of Taxes with respect to which
the Borrower made an indemnification payment, the Lender promptly shall
remit the amount of such refund to the Borrower.
(g) If any Lender is entitled to a reduction in the
applicable withholding tax, the Administrative Agent may withhold from
any interest payment to such Lender an amount equivalent to the
applicable withholding tax after taking into account such reduction. If
the forms or other documentation required by paragraph (d) are not
delivered to the Administrative Agent, then the Administrative Agent may
withhold from any interest payment to such Lender not providing such
forms or other documentation an amount equivalent to the applicable
withholding tax unless the Borrower withholds the appropriate amount
pursuant to subsection 4.13(a).
(h) If the Internal Revenue Service or any other
governmental authority of the United States or other jurisdiction
asserts a claim that the Administrative Agent or the Borrower did not
properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify the Administrative
Agent or the Borrower of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Administrative Agent and
the Borrower fully for all amounts paid, directly or indirectly, by the
Administrative Agent or the Borrower as tax or otherwise, including
penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent or the
Borrower under this subsection, together with all costs and expenses
(including reasonable fees and disbursements of counsel).
(i) Each Lender agrees that it will (i) take all
reasonable actions requested by the Borrower, including, without
limitation, changing the jurisdiction of the Lender's Applicable Lending
Office, that are, in the judgment of such Lender, not disadvantageous to
such Lender to maintain all complete or partial exemptions, if any,
available to it from withholding taxes (whether available by treaty or
existing administrative waiver), and (ii) to the extent reasonable and,
in the judgment of such Lender, not disadvantageous to it, otherwise
cooperate with the Borrower to minimize any amounts payable by the
Borrower under this subsection 4.13.
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34
(j) The provisions of this subsection shall survive
any termination of this Agreement. Each Lender will promptly notify the
Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this subsection 4.13; provided that
if a Lender shall not have so notified the Borrower within 90 days of
such event of which it has knowledge, such Lender may not seek
compensation for any period beginning prior to the date which is 90 days
prior to the date upon which the Borrower is notified of such event.
4.14 Base Rate Loans Substituted for Affected
Eurodollar Loans. If any Lender is an Affected Lender and the Borrower
shall, by at least five Eurodollar Business Days' prior notice to such
Lender through the Administrative Agent, have elected that the
provisions of this subsection 4.14 shall apply to such Lender, then,
unless and until such Lender notifies the Borrower that the
circumstances that caused such Lender to be an Affected Lender no longer
apply:
(a) all Loans which would otherwise be made by such
Lender as Eurodollar Loans shall be made instead as Base Rate
Loans (on which interest and principal shall be payable
contemporaneously with the related Eurodollar Loans of the
other Lenders), and
(b) after each of its Eurodollar Loans has been
repaid, all payments of principal which would otherwise be
applied to repay such Eurodollar Loans shall be applied to
repay its Base Rate Loans instead.
4.15 Pro Rata Treatment and Payments. (a) Each
borrowing by the Borrower in respect of Revolving Credit Loans (subject
to the provisions of subsection 2.4(d)), each payment by the Borrower on
account of any facility fee hereunder and any reduction of the
Commitments of the Lenders shall be made pro rata according to the
respective Commitment Percentages of the Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of
and interest on the Loans shall be made pro rata according to the
respective principal amounts of, or interest on, the Loans, as the case
may be, then due and owing to the Lenders. All payments (including
prepayments) to be made by the Borrower hereunder or under any Note,
whether on account of principal, interest, fees or otherwise, shall be
made without deduction, set-off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the
Administrative Agent's office specified in subsection 11.2, in Dollars
and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like
funds as received. Whenever any payment of principal of, or interest
on, the Base Rate Loans or of fees shall be due on a day that is not a
Domestic Business Day, the date for payment thereof shall be extended to
the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Eurodollar Loans or Money Market LIBOR
Loans shall be due on a day that is not a Eurodollar Business Day, the
date for payment thereof shall be extended to the next succeeding
Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case the date for payment thereof shall
be the next preceding
<PAGE>
35
Eurodollar Business Day. Whenever any payment of principal of, or
interest on, the Money Market Absolute Rate Loans shall be due on a day
that is not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day. If the date
for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment
is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower
has made such payment in full to the Administrative Agent on such date
and the Administrative Agent may, in reliance upon such assumption,
cause to be distributed to each Lender on such due date an amount equal
to the amount then due such Lender. If and to the extent that the
Borrower shall not have so made such payment, each Lender shall repay to
the Administrative Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at the Federal Funds
Rate.
(c) Unless the Administrative Agent has received
notice from a Lender prior to a Borrowing Date that such Lender will not
make available to the Administrative Agent the amount that would
constitute its share of the Loans to be made on such Borrowing Date, the
Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on such Borrowing Date, such
Lender shall pay to the Administrative Agent, on demand, such amount
with interest thereon at a rate equal to the daily average Federal Funds
Rate for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts
owing under this subsection shall be conclusive in the absence of
manifest error. In addition to, and not in limitation of, the
foregoing, if such Lender's share of such Loans is not made available to
the Administrative Agent by such Lender within three Business Days of
such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum equal to
the Federal Funds Rate plus the Applicable Margin applicable to
Eurodollar Loans, on demand, from the Borrower.
4.16 Funding Losses. If the Borrower makes any
payment of principal with respect to any Eurodollar Loan or Money Market
Loan on any day other than the last day of an Interest Period applicable
thereto, or if the Borrower fails to borrow, prepay, convert or continue
any Eurodollar Loan or Money Market Loan after giving a Notice of
Revolving Credit Borrowing, Notice of Money Market Borrowing or notice
of prepayment, continuation or conversion, as the case may be, the
Borrower shall reimburse each Lender within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), including (without
limitation) any loss incurred in liquidating or employing deposits from
third parties, but excluding loss of margin for the period after any
<PAGE>
36
such payment or failure to borrow or prepay, provided that such Lender
shall have delivered to the Borrower a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the
absence of manifest error. The provisions of this subsection shall
survive any termination of this Agreement.
4.17 Replacement of Affected Lender. At any time any
Lender is an Affected Lender, the Borrower may replace such Affected
Lender as a party to this Agreement with one or more other bank(s) or
financial institution(s) reasonably satisfactory to the Administrative
Agent, such bank(s) or financial institution(s) to have a Commitment or
Commitments, as the case may be, in an aggregate amount equal to the
Commitment of such Affected Lender being replaced thereby, and upon
notice from the Borrower such Affected Lender shall assign, without
recourse or warranty, its Commitment, its Revolving Credit Loans, and
all of its other rights and obligations hereunder to such replacement
bank(s) or other financial institution(s) for a purchase price equal to
the sum of the principal amount of the Loans so assigned, all accrued
and unpaid interest thereon, its ratable share of all accrued and unpaid
fees, any amounts payable under subsection 4.16 as a result of such
Lender receiving payment of any Eurodollar Loan prior to the end of an
Interest Period therefor and all other obligations owed to such Affected
Lender hereunder; provided that no Affected Lender shall be required to
assign any Money Market Loan.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and
warrants to each Agent and each Lender that:
5.1 Financial Condition. (a) The unaudited
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of June 30, 1996 and the related unaudited consolidated
statements of income and cash flows for the six months then ended,
copies of which have been delivered to each of the Lenders, fairly
present, in conformity with GAAP applied on a basis consistent with the
financial statements referred to in paragraph (b) of this subsection,
the consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of
operations and cash flows for such six-month period.
(b) The consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of December 31, 1995 and the related
audited consolidated statements of income and cash flows for the fiscal
year then ended, reported on by Coopers & Lybrand LLP, copies of which
have been delivered to each of the Lenders, fairly present, in
conformity with GAAP, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for the fiscal year
then ended.
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37
5.2 No Change. Since June 30, 1996, there has been no
material adverse change in the financial position, results of operations
or business of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
5.3 Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, and has all corporate powers
and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted, except in any case
where the failure to be in good standing or to have such powers,
licenses, authorizations, consents or approvals would not, in the
aggregate, materially adversely affect the financial position, results
of operations or business of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
5.4 Corporate and Governmental Authorization; Non
Contravention. The execution, delivery and performance by the Borrower
of this Agreement and any Note are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental
body, agency or official and do not contravene, or constitute a default
under, any provision of applicable law, rule or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or result in the creation or imposition of any
Lien on any asset of the Borrower or any Subsidiary except for any
contravention of or default under or Lien arising under any law, rule or
regulation or any agreement, judgment, order, decree or other instrument
(other than agreements or instruments constituting or evidencing Debt)
not material to the business of the Borrower and its Consolidated
Subsidiaries, considered as a whole, which contravention, default or
Lien would not (a) materially adversely affect the financial position,
results of operations or business of the Borrower and its Consolidated
Subsidiaries, considered as a whole or (b) adversely affect in any
substantive way the rights and remedies of the Agents and the Lenders
hereunder.
5.5 Binding Effect. This Agreement constitutes, and
any Note when executed and delivered will constitute, a valid and
binding agreement of the Borrower except as the enforceability thereof
may be limited by (a) bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) general equitable principles
(whether enforceability is considered in a proceeding in equity or at
law).
5.6 Litigation. Except as disclosed in the Form 10-K
of the Borrower for the fiscal year ended December 31, 1995, the Form
10-Q of the Borrower for the period ending March 31, 1996, the Form 10-Q
of the Borrower for the period ending June 30, 1996, or in Schedule III,
there is no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, the Borrower
or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official (a) in which there is a reasonable
possibility of an adverse decision that could materially adversely
affect the business, financial position or results of operations of the
Borrower and its Consolidated
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38
Subsidiaries, considered as a whole, or (b) that in any manner draws
into question the validity of this Agreement or any Note.
5.7 Taxes. United States Federal income tax returns
of Santa Fe Pacific Corporation and its Material Subsidiaries have been
examined and closed or the statutes of limitations have expired for all
fiscal years through the year ended December 31, 1980. United States
Federal income tax returns of Burlington Northern Inc. and its Material
Subsidiaries have been examined and closed or the statutes of
limitations have expired for all fiscal years through the year ended
December 31, 1985. The Borrower and its Material Subsidiaries have
filed all United States Federal income tax returns and all other
material tax returns which are required to be filed by them and have
paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Material Subsidiary except
for any taxes being contested in good faith by appropriate proceedings
and as to which accruals have been provided in accordance with GAAP. The
accruals on the books of the Borrower and its Material Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of
the Borrower, adequate.
5.8 Federal Regulations. No part of the proceeds of
any Loans will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under
Regulation G or Regulation U in violation of such Regulations.
5.9 ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA
and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable
provisions of ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (a) sought a waiver of the
minimum funding standard under Section 412 of the Internal Revenue Code
in respect of any Plan, (b) failed to make any contribution or payment
to any Plan or Multiemployer Plan, or made any amendment to any Plan,
that has resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Internal Revenue
Code or (c) incurred any liability under Title IV of ERISA other than
for regular contributions, which are not delinquent, and other than a
liability to the PBGC for premiums under Section 4007 of ERISA or a
liability to any Multiemployer Plan not in excess of $50,000,000.
5.10 Not an Investment Company. The Borrower is not
an "investment company" within the meaning of the Investment Company Act
of 1940, as amended.
5.11 Subsidiaries. Each of the Borrower's corporate
Material Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted except in any case where the
failure to be in good standing or to have such powers, licenses,
authorizations, consents and approvals would not, in the aggregate (a)
materially adversely affect the financial position, results of
operations or business of the Borrower
<PAGE>
39
and its Consolidated Subsidiaries, considered as a whole, or (b)
adversely affect in any substantive way the rights and remedies of the
Agents and the Lenders hereunder or under any Note.
5.12 Environmental Matters. Except as disclosed in
the Form 10-K of the Borrower for the fiscal year ended December 31,
1995, the Form 10-Q of the Borrower for the period ending March 31,
1996, the Form 10-Q of the Borrower for the period ending June 30, 1996,
or in Schedule III, the Borrower and its Subsidiaries are in compliance
in all material respects with all Environmental Laws, and no Hazardous
Substances have been released upon any properties owned, leased or
operated by the Borrower or any of its Subsidiaries, except, in each
case, to an extent that would not be reasonably anticipated to have a
material adverse effect on the business, financial position or results
of operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
5.13 Full Disclosure. The material furnished to the
Agents and the Lenders by or on behalf of the Borrower in connection
with the negotiation, execution and delivery of this Agreement, taken as
a whole, does not contain as of the date hereof, did not contain at the
time so furnished and will not contain on the date of the initial
borrowing of Loans, any untrue statement of a material fact and does not
as of the date hereof omit, did not omit at the time so furnished and
will not omit on the date of the initial borrowing of Loans, to state
any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
5.14 Limitation on Subsidiary Restrictions. Neither
the Borrower nor any Material Subsidiary has entered into any agreement
with any Person prior to the date hereof that will continue to be in
effect after the Closing Date which prohibits or limits the ability of
such Material Subsidiary to pay dividends or make other distributions to
the Borrower.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Closing Date. The Closing Date will
occur on the date of satisfaction of the following conditions precedent:
(a) Revolving Credit Agreement. The Documentation
Agent shall have received this Agreement, executed and
delivered by a duly authorized officer of the Borrower, with a
counterpart for each Lender.
(b) Related Agreements. The Documentation Agent shall
have received, with a copy for each Lender, true and correct
copies, certified as to authenticity by the Borrower, of such
other documents or instruments as may be reasonably requested
by the Documentation Agent, including, without limitation, a
copy of any material debt instrument, material security
agreement or other material contract to which the Borrower or
its Subsidiaries may be a party.
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(c) Corporate Proceedings of the Borrower. The
Documentation Agent shall have received, with a counterpart for
each Lender, a copy of the resolutions, in form and substance
satisfactory to the Documentation Agent, of the Board of
Directors of the Borrower authorizing (i) the execution,
delivery and performance of this Agreement and any Note and
(ii) the borrowings contemplated hereunder, certified by the
secretary or an assistant secretary of the Borrower as of the
Closing Date, which certificate shall be in form and substance
satisfactory to the Documentation Agent and shall state that
the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(d) Borrower Incumbency Certificate. The
Documentation Agent shall have received, with a counterpart for
each Lender, a certificate of the Borrower, dated the Closing
Date, as to the incumbency and signature of the officers of the
Borrower executing this Agreement and documents executed by the
Borrower pursuant hereto, satisfactory in form and substance to
the Documentation Agent, executed by the vice-president -
finance or the chief financial officer and the secretary or an
assistant secretary of the Borrower.
(e) Corporate Documents. The Documentation Agent
shall have received, with a counterpart for each Lender, true
and complete copies of the certificate of incorporation and
by-laws of the Borrower, certified as of the Closing Date as
complete and correct copies thereof by the secretary or an
assistant secretary of the Borrower.
(f) Fees. Each Agent and each Co-Arranger shall have
received the fees referred to in subsection 4.1 to be received
on or prior to the Closing Date.
(g) Legal Opinions. The Documentation Agent shall
have received, with a counterpart for each Lender, the
following executed legal opinions:
(i) the executed legal opinion of Mayer,
Brown & Platt, counsel to the Borrower, substantially
in the form of Exhibit E-1;
(ii) the executed legal opinion of the
general counsel of the Borrower, substantially in the
form of Exhibit E-2; and
(iii) the executed legal opinion of Simpson
Thacher & Bartlett, special counsel to the
Documentation Agent and the Administrative Agent,
substantially in the form of Exhibit E-3.
Each such legal opinion shall be dated the Closing Date and
shall cover such other matters incident to the transactions
contemplated by this Agreement as either Agent may reasonably
require.
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41
(h) Representations and Warranties. Each of the
representations and warranties made by the Borrower in this
Agreement shall be true and correct in all material respects on
and as of the Closing Date as if made on and as of the Closing
Date.
(i) No Default. No Default or Event of Default shall
have occurred and be continuing on the Closing Date.
(j) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by
this Agreement shall be satisfactory in form and substance to
the Agents, and the Agents and the Lenders shall have received
such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby
or thereby as the Agents shall reasonably request.
6.2 Conditions to Each Loan. The agreement of each
Lender to make any Loan requested to be made by it on any date
(including, without limitation, its initial Loan) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in this
Agreement shall be true and correct in all material respects on
and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving
effect to the Loans requested to be made on such date.
(c) Notice of Borrowing. The Administrative Agent
shall have received by the time required pursuant to subsection
2.2 or 3.6, as the case may be, the Notice of Revolving Credit
Borrowing or Notice of Money Market Borrowing, as the case may
be, in respect of such Loans.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date thereof that
the conditions contained in paragraphs (a), (b) and (c) of this
subsection have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the
Commitments remains in effect or any amount is owing to any Lender or
Agent hereunder or under any Note:
7.1 Information. The Borrower will deliver to the
Administrative Agent in sufficient number for all of the Lenders (and
the Administrative Agent shall promptly deliver to each Lender upon
receipt):
<PAGE>
42
(a) as soon as available and in any event within 120
days after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and
cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
reported on in a manner acceptable to the Securities and
Exchange Commission by independent public accountants of
nationally recognized standing;
(b) within 120 days after the end of each fiscal year
of the Borrower, a consolidating balance sheet in reasonable
detail of the Borrower and its Consolidated Subsidiaries as of
the end of such fiscal year and the related consolidating
statement of income for such fiscal year, all certified by the
chief financial officer, chief accounting officer or vice
president-finance of the Borrower as having been used in
connection with the preparation of the financial statements
referred to in paragraph (a) of this subsection;
(c) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of
such quarter, the related consolidated statement of income for
such quarter and for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in comparative
form such statement of income for the corresponding quarter and
the corresponding portion of the Borrower's previous fiscal
year, and the related consolidated statement of cash flow for
the portion of the Borrower's fiscal year ended at the end of
such quarter, setting forth in comparative form such statement
of cash flow for the corresponding portion of the Borrower's
previous fiscal year, all certified as to fairness of
presentation, generally accepted accounting principles and
consistency (except for any changes concurred with by the
Borrower's independent public accountants) by the chief
financial officer, chief accounting officer or vice
president-finance of the Borrower;
(d) simultaneously with the delivery of each set of
financial statements referred to in paragraphs (a) and (c) of
this subsection, a certificate of the chief financial officer,
chief accounting officer or vice president-finance of the
Borrower (A) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in
compliance with the requirements of subsections 8.1, and 8.2 on
the date of such financial statements, (B) stating whether
there exists on the date of such certificate any Default and,
if any Default then exists, setting forth the details thereof
and the action that the Borrower is taking or proposes to take
with respect thereto and (C) stating whether, to the best of
his knowledge, after due inquiry, since the date of the most
recent previous delivery of financial statements pursuant to
paragraph (a) or (c) of this subsection, there has been any
material adverse change in the business, financial position or
results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, and, if so, the nature of
such material adverse change;
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43
(e) simultaneously with the delivery of each set of
financial statements referred to in paragraph (a) of this
subsection, a statement of the firm of independent public
accountants that reported on such statements (i) stating that
their audit examination has included a review of the terms of
this Agreement as they relate to financial or accounting
matters (including without limitation the requirements of
subsections 8.1 and 8.2) and (ii) stating whether anything has
come to their attention to cause them to believe that any
Default existed on the date of such statements;
(f) within five days after any officer of the Borrower
obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer, chief
accounting officer or vice president-finance of the Borrower
setting forth the details thereof and the action that the
Borrower is taking or proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all financial
statements, reports and proxy statements so mailed;
(h) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and
any registration statements on Form S-8 or its equivalent) and
annual, quarterly or other reports that the Borrower shall have
filed with the Securities and Exchange Commission (it being
understood that if such reports and the financial statements,
reports and proxy statements referred to in paragraph (g) of
this subsection are provided within the time period prescribed
by, and contain the financial statements, opinions and
certifications required by, paragraphs (a) and (c) of this
subsection, the requirements of supplying such financial
statements, opinions and certifications shall be deemed to have
been met);
(i) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with
respect to any Plan that might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Plan has given or is required to
give notice of any such reportable event, a copy of the notice
of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with
the PBGC; (vi) gives notice of withdrawal from any Plan
pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or
makes any amendment to any Plan that has resulted or could
result in the imposition of a Lien or the posting of a bond or
other
<PAGE>
44
security, a certificate of the chief financial officer, the
vice president-finance or the chief accounting officer of the
Borrower setting forth details as to such occurrence and
action, if any, that the Borrower or applicable member of the
ERISA Group is required or proposes to take;
(j) as soon as reasonably practicable after the
chairman, president, secretary, treasurer, chief financial
officer, vice president-finance, chief legal officer or any
vice president of the Borrower obtains knowledge of the
commencement of, or a material threat of the commencement of,
an action, suit, arbitration or other proceeding against the
Borrower or any Subsidiary before any court or arbitrator or
any governmental body, agency, arbitrator or other official in
which there is a reasonable possibility of an adverse decision
that could materially adversely affect the business, financial
position or results of operation of the Borrower and its
Consolidated Subsidiaries, considered as a whole, or that in
any manner draws into question the validity of this Agreement,
information as to the nature of such pending or threatened
action, suit or proceeding;
(k) promptly after the chairman, president, secretary,
treasurer, chief financial officer, vice president-finance,
chief legal officer or any vice president of the Borrower
obtains knowledge of a Change of Control, information as to the
details thereof; and
(l) from time to time such additional information
regarding the financial position, results of operations or
business of the Borrower or any of its Subsidiaries as the
Administrative Agent, at the reasonable request of any Lender,
may request.
7.2 Maintenance of Properties; Insurance. (a) Except
as otherwise permitted by subsection 8.4, the Borrower will keep, and
will cause each Subsidiary to keep, all material property useful and
necessary in its business in good working order and condition, ordinary
wear and tear excepted, to the extent required by sound business
practice.
(b) The Borrower will insure, and will cause each
Subsidiary to insure, its assets and businesses to such extent as is
customary for companies engaged in the same or similar businesses in
similar locations.
7.3 Conduct of Business and Maintenance of Existence.
Except as permitted by subsection 8.4, the Borrower will continue, and
will cause each Subsidiary to continue, to engage in business of the
same general type as now conducted by the Borrower and such Subsidiary,
and will preserve, renew and keep in full force and effect, and will
cause each Subsidiary to preserve, renew and keep in full force and
effect, its corporate existence and its rights, privileges and
franchises necessary or desirable in the normal conduct of business;
provided that nothing in this subsection shall prohibit (a) any merger,
consolidation or Disposition permitted by subsection 8.4, or (b) the
termination of the corporate existence of any Subsidiary (other than
Burlington Northern Railroad or Santa Fe Railroad or, in the event of
the merger or consolidation of Burlington Northern Railroad and Santa Fe
Railroad, the surviving corporation of such merger or consolidation) if
the Borrower in good faith
<PAGE>
45
determines that such termination is in the best interest of the Borrower
and is not materially disadvantageous to the Lenders.
7.4 Compliance with Laws. The Borrower will comply,
and will cause each Subsidiary to comply, in all material respects with
all applicable laws, ordinances, rules, regulations and requirements of
governmental authorities (including, without limitation, Environmental
Laws and ERISA and the rules and regulations thereunder) except (a)
where necessity of compliance therewith is contested in good faith by
appropriate proceedings or (b) where the failure so to comply would not
have a material adverse effect on the business, financial position or
results of operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole.
7.5 Use of Proceeds. (a) The Borrower will use the
proceeds of the Loans for working capital and other general corporate
purposes.
(b) None of the proceeds of any Loan will be used,
directly or indirectly, for the purpose, whether immediate, incidental
or ultimate, of purchasing or carrying any "margin stock" within the
meaning of Regulation G or Regulation U in violation of such
Regulations.
7.6 Maintenance of Ownership of Railroads. The
Borrower will at all times own, directly or through one or more
Wholly-Owned Subsidiaries that are Material Subsidiaries, all
outstanding capital stock of Burlington Northern Railroad and Santa Fe
Railroad (or, in the event of the merger or consolidation of Burlington
Northern Railroad and Santa Fe Railroad, the surviving corporation of
such merger or consolidation).
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the
Commitments remains in effect or any amount is owing to any Lender or
Agent hereunder or under any Note:
8.1 Financial Condition Covenants.
(a) Maintenance of Consolidated Tangible Net Worth.
The Borrower will not permit Consolidated Tangible Net Worth at
any time to be less than $4,400,000,000.
(b) Limitation on Consolidated Total Debt. The
Borrower will not permit Consolidated Total Debt at any time to
exceed 55% of Consolidated Total Capital at such time.
8.2 Limitation on Debt. (a) The Borrower will not
permit any Subsidiary to create, incur, assume or suffer to
exist any Debt, except:
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46
(i) Debt of any Subsidiary to the Borrower or to
another Wholly-Owned Subsidiary;
(ii) Debt of any Subsidiary used for the purposes
specified in, and secured by any Lien permitted by (or, if such
Subsidiary is not a Material Subsidiary, any Lien which would
be permitted if it were a Material Subsidiary by), subsection
8.3(b), (c), (d), (e) or (j), and any refinancing of such Debt
in a principal amount not exceeding the fair market value (as
determined in good faith by the Borrower), on the date of such
refinancing, of the assets subject to such Lien;
(iii) Debt of any Subsidiary outstanding on the date
hereof and listed on Schedule II, and any Debt of any
Subsidiary the proceeds of which are used to refinance such
outstanding Debt of such Subsidiary, provided that the
principal amount thereof is not increased;
(iv) Receivables Program Obligations, to the extent
that the Accounts Receivable Financing Amount thereof does not
exceed $750,000,000; and
(v) additional Debt of any Subsidiary in an
aggregate principal amount for all Subsidiaries at any time
outstanding not exceeding 5% of Consolidated Tangible Net
Worth.
(b) The Borrower will not permit any Subsidiary or
Special Purpose Vehicle to incur any Receivables Program Obligations
(including as permitted by subsection 8.2(a)(v)) to the extent that the
Accounts Receivable Financing Amount thereof exceeds $750,000,000.
8.3 Limitation on Liens. Neither the Borrower nor any
Material Subsidiary will create or have outstanding any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date hereof securing Debt
outstanding on the date hereof;
(b) any Lien existing on any asset of any corporation
at the time such corporation becomes a Material Subsidiary and
not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the
cost of acquiring such asset, provided that such Lien attaches
to such asset, and only to such asset, concurrently with or
within 360 days after the acquisition (or completion of
development) thereof;
(d) any Lien on any asset of any corporation existing
at the time such corporation is merged into or consolidated
with the Borrower or a Material Subsidiary and not created in
contemplation of such event;
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47
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Material Subsidiary
and not created in contemplation of such acquisition;
(f) Liens created on railroad property pursuant to
after-acquired property clauses of mortgages on such railroad
property so long as such mortgage was in existence on the date
hereof;
(g) Liens arising pursuant to judgments, attachments,
distraint or similar legal processes in an amount not exceeding
$250,000,000 which have been bonded or stayed pending appeal or
other contest;
(h) materialmen's, vendor's, workmen's, operator's,
mechanics', carrier's and like Liens imposed by law, incurred
in good faith in the ordinary course of business and securing
obligations that are not yet due or that are being contested in
good faith by appropriate proceedings;
(i) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any Lien
permitted by any of the foregoing clauses of this Section,
provided that such Debt is not increased beyond the principal
amount thereof outstanding on the date of such refinancing,
extension, renewal or refinancing, and is not secured by any
additional assets;
(j) any Lien on railroad locomotives, auto racks or
rolling stock securing Debt incurred for the purpose of
acquiring or refurbishing such property; provided, that such
Lien attaches to such property and only to such property within
360 days after the acquisition or the completion of
refurbishment of such property;
(k) any Lien on Receivables Program Assets securing
Receivables Program Obligations; and
(l) Liens not otherwise permitted by the foregoing
clauses of this subsection securing Debt in an aggregate
principal amount at any time outstanding not exceeding 5% of
Consolidated Tangible Net Worth.
8.4 Consolidations, Mergers and Sale of Assets. The
Borrower will not, and will not permit any Material Subsidiary to,
consolidate with or merge into any other Person or Dispose of all or
substantially all of its assets, property or business, in any single
transaction or series of related transactions; provided, that (a) any
Material Subsidiary may merge or consolidate with, or Dispose of all or
substantially all of its assets, property or business to, any other
Subsidiary or may merge or consolidate with, or Dispose of all or
substantially all of its assets, property or business to, the Borrower
(if the Borrower shall be the surviving corporation in any such merger
or consolidation), (b) subject to subsection 7.6, any Material
Subsidiary may consolidate with or merge into any other Person, or any
Material Subsidiary (other than Burlington Northern Railroad or Santa Fe
Railroad) may Dispose of all or
<PAGE>
48
substantially all of its assets, property or business in any single
transaction or any series of related transactions, on terms and
conditions approved by the Board of Directors of the Borrower, and (c)
subject to subsection 7.6, the Borrower may merge or consolidate with
any other corporation if (i) (A) the surviving corporation shall be the
Borrower or (B) the surviving corporation, if not the Borrower, shall be
a corporation organized and existing under the laws of the United States
or any state thereof or the District of Columbia and shall expressly
assume by a written assignment executed and delivered to the
Administrative Agent, all of the rights and obligations of the Borrower
under this Agreement (and pursuant to which such surviving corporation
shall become the "Borrower" under this Agreement), and (ii) after giving
effect to such merger or consolidation no Default shall have occurred
and be continuing.
8.5 Limitation on Transactions with Affiliates. The
Borrower will not, and will not permit any Subsidiary to, directly or
indirectly, pay any funds to or for the account of, make any investment
(whether by acquisition of stock or indebtedness, by loan, advance,
transfer of property, guarantee or other agreement to pay, purchase or
service, directly or indirectly, any Debt, or otherwise) in, lease,
sell, transfer or otherwise dispose of any assets, tangible or
intangible, to, or participate in, or effect any transaction in
connection with any joint enterprise or other joint arrangement with,
any Affiliate other than in the ordinary course of business and on terms
and conditions at least as favorable to the Borrower or such Subsidiary
as the terms and conditions which would apply in a similar transaction
with a Person not an Affiliate.
8.6 Limitation on Subsidiary Restrictions. The
Borrower will not permit any Material Subsidiary to enter into any
agreement after the date hereof with any Person which prohibits or
limits the ability of such Material Subsidiary to pay dividends or make
other distributions to the Borrower, or amend, modify or supplement any
existing agreement or instrument in any manner that has the effect of so
prohibiting or limiting such ability.
SECTION 9. EVENTS OF DEFAULT
9.1 Events of Default. If any of the following events
shall occur and be continuing:
(a) the Borrower shall fail to pay when due any
principal of any Loan;
(b) the Borrower shall fail to pay interest on any
Loan or any fees or other amounts payable hereunder within five
days after the same becomes due and payable;
(c) the Borrower shall fail to observe or perform any
covenant contained in subsection 7.1(f), 7.6, 8.1, 8.4, 8.6, or
at any time that Rating VI is in effect, subsection 8.2, 8.3 or
8.5;
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49
(d) (i) the Borrower shall fail to observe or perform
any covenant contained in subsection 8.2, 8.3 or 8.5 at any
time that a Rating other than Rating VI is in effect and such
default continues unremedied for a period of 30 days after the
occurrence thereof or (ii) the Borrower shall fail to observe
or perform any covenant or agreement contained in this
Agreement (other than those covered by clause (a), (b), (c) or
(d)(i) above) for 30 days after written notice thereof has been
given to the Borrower by the Administrative Agent at the
request of any Lender;
(e) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made);
(f) any payment in respect of Specified Obligations of
the Borrower and its Material Subsidiaries (except for Debt
under this Agreement) having a principal amount in excess of
$75,000,000 in the aggregate shall not be paid when due or
within any applicable grace period;
(g) any event or condition shall occur that results in
the acceleration of the maturity of any Specified Obligations
of the Borrower and its Material Subsidiaries (except for Debt
under this Agreement) and/or cancellation of commitments under
Committed Credit Facilities in a principal amount in excess of
$75,000,000 in the aggregate for all such Specified Obligations
and Committed Credit Facilities or enables the holder of such
Specified Obligation and/or the lenders under any such
Committed Credit Facility or any Person acting on behalf of
such holders and/or lenders to accelerate the maturity of such
Specified Obligation and/or to terminate the commitments to
extend credit under such Committed Credit Facility, in each
case in an aggregate amount in excess of $75,000,000 for all
such Specified Obligations and Committed Credit Facilities;
(h) the Borrower or any Material Subsidiary shall
commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors,
or shall fail generally to pay its debts as they become due, or
shall take any corporate action to authorize any of the
foregoing;
(i) an involuntary case or other proceeding shall be
commenced against the Borrower or any Material Subsidiary
seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator,
<PAGE>
50
custodian or other similar official of it or any substantial
part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period
of 60 days; or an order for relief shall be entered against the
Borrower or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(j) any member of the ERISA Group at the time in
question shall fail to pay when due an amount or amounts
aggregating in excess of $10,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group at the time in question,
any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to
be appointed to administer any Material Plan; or a condition
shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial
withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer
Plans which could cause one or more members of the ERISA Group
to incur a current payment obligation in excess of $50,000,000;
or
(k) (i) one or more judgments or orders for the
payment of money in an aggregate amount in excess of
$100,000,000, other than the Crow Judgment, shall be rendered
against the Borrower or any Material Subsidiary and such
judgments or orders shall continue unsatisfied and unstayed for
a period of 30 days; or (ii) in the case of the Crow Judgment,
(A) Burlington Northern Railroad shall cease diligently and
actively to pursue one or more appeals or other applicable
legal proceedings to overturn or challenge the Crow Judgment
and defend against enforcement thereof, in each case in any
court in the United States having jurisdiction to consider such
appeals or proceedings; (B) any enforcement, injunction,
seizure, attachment or other action affecting the assets or
operations of Burlington Northern Railroad shall occur in
respect of the Crow Judgment that, individually or in the
aggregate, has a material adverse effect on the financial
position, results of operations or business of the Borrower and
its Consolidated Subsidiaries, considered as a whole; (C) any
state or Federal court shall render a judgment, order or
decision having the effect of allowing enforcement of the Crow
Judgment, and such judgment, order or decision shall continue
unsatisfied and unstayed for a period of 30 days; or (D) (x)
the amount of the award thereunder (excluding post-judgment
interest) is increased to an amount greater than $250,000,000,
(y) the amount of such award not covered by insurance exceeds
$100,000,000 and (z) the judgment, order or decision effecting
such increase shall continue unsatisfied and unstayed for a
period of 30 days;
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (h) or (i) of this subsection 9.1 with respect to
the Borrower, automatically the Commitments shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and any Note shall immediately become
due and
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51
payable, and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Commitments to be terminated forthwith, whereupon
the Commitments shall immediately terminate; and (ii) with the consent
of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and
any Note to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided above
in this subsection 9.1, presentment, demand, protest and all other
notices of any kind are hereby expressly waived by the Borrower.
9.2 Notice of Default. The Administrative Agent shall
give notice to the Borrower under subsection 9.1(d)(ii) promptly upon
being requested to do so by any Lender and shall thereupon notify all
the Lenders thereof.
SECTION 10. THE AGENTS
10.1 Appointment and Authorization. Subject to the
limitations set forth in subsection 10.9, each Lender irrevocably
appoints and authorizes each Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and any Note as
are delegated to such Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto.
10.2 Agents and Affiliates. Each Agent shall have the
same rights and powers under this Agreement and any Note held by it as
any other Lender and may exercise or refrain from exercising the same as
though it were not an Agent. The Lenders acknowledge that each Agent
may receive information regarding the Borrower or its Affiliates that is
not expressly furnished pursuant to this Agreement to it in such
capacity (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Affiliate) and acknowledge
that each Agent shall be under no obligation to provide such information
to them. Each Agent and each of their respective affiliates may accept
deposits from, lend money to, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Borrower or any Subsidiary or Affiliate of
the Borrower as if it were not an Agent hereunder and without notice to
or consent of the Lenders.
10.3 Action by Agents. The obligations of the Agents
hereunder are only those expressly set forth herein and no Agent shall
have or be deemed to have any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
otherwise exist against the Agents. The Documentation Agent shall have
no responsibilities, duties, obligations, or liabilities hereunder or
otherwise in connection herewith after the Closing Date. No Agent shall
be deemed to have knowledge or notice of the occurrence of any Default
except, in the
<PAGE>
52
case of the Administrative Agent, to the extent it has received requests
from any Lender pursuant to subsection 9.1(d)(ii). Without limiting the
generality of the foregoing, no Agent shall be required to take any
action with respect to any Default, except as expressly provided in
Section 9. Each Agent shall be fully justified in failing or refusing
to take any action under this Agreement unless it shall first receive
such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take
any such action.
10.4 Consultation with Experts; Delegation of Duties.
Any Agent may execute any of its duties under this Agreement by or
through agents, employees or legal counsel. Any Agent may consult with
legal counsel (who may be internal counsel or counsel for the Borrower),
independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
10.5 Liability of Agents. No Agent nor any of such
Agent's affiliates nor any of their respective directors, officers,
agents, or employees shall be liable for any action taken or not taken
by it in connection herewith (a) with the consent or at the request of
the Required Lenders or (b) in the absence of its own gross negligence
or willful misconduct. Without limiting the generality of the
foregoing, if this Agreement requires that any notice, consent,
certificate, statement, opinion or other writing be reasonably
satisfactory or otherwise acceptable to either Agent, then neither Agent
nor any of their respective directors, officers, agents or employees
shall be liable for accepting the same or acting thereon as long as such
Agent did so in good faith. No Agent nor any of their directors,
officers, agents or employees shall be responsible for or have any duty
to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition
specified in Section 6, except receipt of items required to be delivered
to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement or any Note or any other instrument or
writing furnished in connection herewith. No Agent shall incur any
liability by acting in reliance upon any notice, consent, certificate,
statement or other writing (which may be a bank wire, telex or similar
writing) believed by it to be genuine or to be signed by the proper
party or parties.
10.6 Indemnification of Agents. Each Lender shall,
ratably in accordance with its Commitment, indemnify each Agent and such
Agent's affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including counsel fees and disbursements (which for these
purposes shall encompass the allocated costs and all disbursements of
internal counsel)), claim, demand, action, loss or liability (except
such as result from such indemnitee's gross negligence or willful
misconduct) that such indemnitee may suffer or incur in connection with
this Agreement or any Note or any action taken or omitted by such
indemnitee hereunder. The provisions of this subsection shall survive
any termination of this Agreement.
<PAGE>
53
10.7 Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon any Agent and such
Agent's affiliates or any other Lender or their respective directors,
officers, agents or employees, and based on such documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any
Agent or such Agent's affiliates or any other Lender or their respective
directors, officers, agents or employees, and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking any action under
this Agreement. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by an Agent,
such Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrower which may come into the possession of
any of such Agent or its affiliates or directors, officers, agents or
employees.
10.8 Successor Agents. The Administrative Agent,
subject to the appointment and acceptance of a successor Administrative
Agent as provided below, may resign as Administrative Agent hereunder at
any time by giving notice thereof to the Lenders and the Borrower. Upon
any such resignation, the Required Lenders (with the consent of the
Borrower, which shall not be unreasonably withheld or delayed) shall
have the right to appoint a successor to Administrative Agent. If no
such successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Administrative Agent gives notice of
resignation, then such retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized or licensed under the laws of the United
States or of any State thereof and having a combined capital and surplus
of at least $500,000,000. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of
this Section and subsection 11.5 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative
Agent.
10.9 The Co-Arrangers. The Co-Arrangers, in such
capacity, shall have no duties or responsibilities, and shall incur no
liability, under this Agreement.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement
nor any Note nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of
this subsection. The Required Lenders may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications
hereto or to any Note
<PAGE>
54
for the purpose of adding any provisions to this Agreement or to any
Note or changing in any manner the rights of the Lenders or of the
Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders may specify in such instrument, any
of the requirements of this Agreement or any Default or Event of Default
and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan, or reduce the stated
rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof or increase the amount or extend the
expiration date of any Lender's Commitment, in each case without the
consent of each Lender affected thereby, or (ii) amend, modify or waive
any provision of this subsection or reduce the percentage specified in
the definition of Required Lenders, or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement, in each case without the written consent of all the Lenders,
or (iii) amend, modify or waive any provision of Section 10 without the
written consent of both Agents. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Borrower, the Lenders, the Agents and all
future holders of the Loans. In the case of any waiver, the Borrower,
the Lenders and the Agents shall be restored to their former positions
and rights hereunder and under any Notes, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such
waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by facsimile transmission), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when
delivered, or three Domestic Business Days after being deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower, the
Administrative Agent and the Documentation Agent and as set forth in
Schedule I in the case of the Lenders, or to such other address as may
be hereafter notified by the respective parties hereto:
The Borrower: Burlington Northern Santa Fe
Corporation
Two Century Centre
1700 East Golf Road
Schaumburg, IL 60173-5860
Attention: Patrick J. Ottensmeyer
Fax: 847-995-6605
The Administrative Agent:
The Chase Manhattan Bank
10 South LaSalle Street
Suite 2300
Chicago, IL 60603
Attention: Jonathan E. Twichell
Fax: 312-807-4550
Tel: 312 807-4038
<PAGE>
55
with a copy to: Chase Loan and Agency Services
Group
140 East 45th Street, 29th Floor
New York, NY 10017
Attention: Janet N. Belden
Fax: 212-622-0002
Tel: 212-622-0011
The Documentation Agent: Morgan Guaranty Trust Company of
New York
60 Wall Street
New York, New York 10260
Attention: Charles H. King
Fax: (212) 648-5336
Tel: (212) 648-7138
; provided that any notice, request or demand to or upon either Agent
shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of either Agent or any
Lender, any right, remedy, power or privilege hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and
the making of the Loans hereunder.
11.5 Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses of the Agents in connection with the preparation
and effectiveness of this Agreement (including reasonable fees and
disbursements of Simpson Thacher & Bartlett, special counsel to the
Agents). The Borrower shall also pay (i) all reasonable out-of-pocket
expenses of the Agents (including, without duplication, reasonable fees
and disbursements of counsel to the Agents) in connection with (A) the
administration of this Agreement and any waiver or consent hereunder or
any amendment hereof or (B) any Default or alleged Default hereunder and
(ii) if an Event of Default occurs, all out-of-pocket expenses incurred
by any Agent or any Lender, including reasonable fees and disbursements
of counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
<PAGE>
56
11.6 Successors and Assigns. (a) The provisions of
this Agreement and any Notes shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, except that (i) other than under the provisions of clause (c)
of subsection 8.4, the Borrower may not assign or otherwise transfer any
of its rights or obligations under this Agreement or any Notes without
the prior written consent of all Lenders and (ii) a Lender may assign or
otherwise transfer any of its rights under this Agreement or any Notes
only in accordance with the provisions of paragraph (b), (c) or (d) of
this subsection.
(b) Any Lender may at any time grant to one or more
banks or other institutions (each a "Participant") participating
interests in its Commitments or its Loans. In the event of any such
grant by a Lender of a participating interest to a Participant, whether
or not upon notice to the Borrower and the Administrative Agent, such
Lender shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative Agent shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement
pursuant to which any Lender may grant such a participating interest
shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Lender will not agree
to any modification, amendment or waiver of this Agreement without the
consent of the Participant that would reduce the principal of or rate of
interest on any Loan or Loans in which such Participant has a
participating interest, reduce any fee payable pursuant to subsection
4.1 or postpone the date fixed for any payment of interest or principal
on such Loan or Loans or of such fees or is of a type that requires the
consent of all the Lenders pursuant to clause (ii) of the proviso in
subsection 11.1. The Borrower agrees that each Participant shall, to
the extent provided in its participation agreement but subject to
paragraph (e) of this subsection, be entitled to the benefits of
subsections 4.10 through 4.16 with respect to its participating
interest. An assignment or other transfer that is not permitted by
paragraph (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in
accordance with this paragraph (b).
(c) Any Lender may, in accordance with applicable law,
at any time assign to one or more banks or other entities of a type to
which commercial banks customarily assign loans of the type made under
this Agreement (each an "Assignee") a portion of its Commitments in an
amount not less than $10,000,000 (provided, that, if such Lender's
Commitment is $10,000,000 or less, it may assign all, but not less than
all, of its Commitment and provided, further, that assignments by one
Lender to another Lender may be in any amounts) and its rights and
obligations under this Agreement, and such Assignee shall assume such
rights and obligations, pursuant to an Assignment and Acceptance
executed by such Assignee and such transferor Lender, with (and subject
to) the consent of the Borrower and the Administrative Agent, which
consent of the Administrative Agent shall not be unreasonably withheld;
provided that if an Assignee is a Lender or an affiliate of a Lender, no
such consents shall be required. Each such assignment must be a
proportionate share of the
<PAGE>
57
transferor Lender's Commitment and Revolving Credit Loans. Upon
execution and delivery of such instrument and payment by such Assignee
to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee (and, in the
case of an Assignee not incorporated under the laws of the United States
of America or a state thereof, delivery to the Administrative Agent of
the documents described in subsection 4.13), such Assignee shall be a
Lender party to this Agreement and shall have all the rights and
obligations of a Lender with a Commitment as set forth in such
instrument of assumption, and the transferor Lender shall be released
from its obligations hereunder to a corresponding extent, and no further
consent or action by any party shall be required. In connection with
any such assignment the transferor Lender shall pay to the
Administrative Agent a fee of $2,500 for processing such assignment,
provided that such fee shall be payable by the Borrower in the event it
is required to be paid in respect of an assignment required by the
Borrower pursuant to subsection 4.17.
(d) Any Lender may at any time assign all or any
portion of its rights under this Agreement or any Note to a Federal
Reserve Bank. No such assignment shall release the transferor Lender
from its obligations hereunder.
(e) No Participant or other transferee of any Lender's
rights shall be entitled to receive any greater payment under
subsections 4.12 or 4.16 than such Lender would have been entitled to
receive with respect to the rights transferred (if it had not so
transferred such rights), unless such transfer is made with the
Borrower's prior written consent after the date hereof or made pursuant
to subsection 11.10.
(f) The Administrative Agent shall maintain at the
address of the Administrative Agent referred to in subsection 11.2 a
copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts of the Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person whose name
is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement,
notwithstanding any notice to the contrary. Any assignment of any Loan
or other obligation hereunder shall be effective only upon appropriate
entries with respect thereto being made in the Register. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
11.7 Indemnification by the Borrower. The Borrower
agrees to indemnify each Lender and each Agent, their respective
affiliates and the respective directors, officers, agents, stockholders,
partners and employees of the foregoing (each an "Indemnitee") and hold
each such Indemnitee harmless from and against all liabilities, losses,
damages, costs and expenses, including, subject to the limitations set
forth in the next succeeding sentence, reasonable fees and disbursements
of counsel (which for these purposes shall encompass the allocated costs
of internal legal services and all disbursements of internal counsel),
in connection with any investigative, administrative or judicial action,
suit or proceeding,
<PAGE>
58
whether or not such Indemnitee shall be designated a party thereto, that
may be incurred by such Indemnitee relating to or arising out of this
Agreement or any actual or proposed use of the proceeds of any Loan,
provided that in no event shall any Indemnitee have the right to be
indemnified hereunder by the Borrower for its own gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
The obligation of the Borrower to indemnify each Indemnitee under this
subsection for fees and disbursements of counsel shall be limited to the
fees and expenses of one counsel in each jurisdiction representing all
such Persons, except (i) to the extent that, in the reasonable judgment
of any such Person, the existence of actual or potential conflicts of
interest make representation by the same counsel inappropriate and (ii)
that any such Person that is a party to, or compelled to participate in,
any such action, suit or proceeding shall be indemnified for the
reasonable fees and disbursements of its counsel to the extent provided
in the immediately preceding sentence. The provisions of this subsection
shall survive any termination of this Agreement.
11.8 Adjustments. If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its
Revolving Credit Loans (or, after acceleration of the Loans pursuant to
Section 9, its Loans), or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by deduction,
set-off or counterclaim, pursuant to events or proceedings of the nature
referred to in subsection 9.1(h) or (i), or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Revolving Credit Loans
(or, after acceleration of the Loans pursuant to Section 9, its Loans),
or interest thereon, such Benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Revolving Credit Loans (or, after acceleration of the
Loans pursuant to Section 9, its Loans), or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such Benefitted Lender to share
the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
11.9 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and each Agent.
11.10 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
11.11 Integration. This Agreement represents the
agreement of the Borrower, the Agents and the Lenders with respect to
the subject matter hereof, and there are no
<PAGE>
59
promises, undertakings, representations or warranties by either Agent or
any Lender relative to the subject matter hereof not expressly set forth
or referred to herein or in the Notes.
11.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
11.13 Submission To Jurisdiction; Waivers. The
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the Notes
to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts
of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the
same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form
of mail), postage prepaid, to the Borrower at its address set
forth in subsection 11.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
and
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction.
11.14 Acknowledgments. The Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes;
(b) neither any Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the Notes, and the
relationship between the Agents and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or
therewith is solely that of creditor and debtor; and
<PAGE>
60
(c) no joint venture is created hereby or otherwise
exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrower and the Lenders.
11.15 Certain Existing Lenders. Each lender that is a
"Lender" under (and as defined in) the Existing Credit Agreement and
that is not a Lender signatory hereto shall, effective upon the
satisfaction of the conditions set forth in Section 6 hereof on the
Closing Date, cease to be a Lender, and the commitments of such lender
under the Existing Credit Agreement to make additional extensions of
credit shall thereupon be terminated.
11.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
NOTE AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
BURLINGTON NORTHERN SANTA FE CORPORATION
By:
------------------------------------
Title:
CHASE SECURITIES INC., as a
Co-Arranger
By:
------------------------------------
Title:
J.P. MORGAN SECURITIES INC.,
as a Co-Arranger
By:
------------------------------------
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
<PAGE>
61
and as a Lender
By:
------------------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Documentation
Agent and as a Lender
By:
------------------------------------
Title:
ABN AMRO BANK N.V.
By:
------------------------------------
Title:
BANK OF AMERICA ILLINOIS
By:
------------------------------------
Title:
BANK OF MONTREAL
By:
------------------------------------
Title:
THE BANK OF NEW YORK
By:
------------------------------------
Title:
<PAGE>
62
CREDIT LYONNAIS, CAYMAN ISLAND
BRANCH
By:
------------------------------------
Title:
CREDIT SUISSE
By:
------------------------------------
Title:
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By:
------------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------------
Title:
MELLON BANK, N.A.
By:
------------------------------------
Title:
NATIONAL WESTMINSTER BANK PLC
By:
------------------------------------
Title:
<PAGE>
63
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By:
------------------------------------
Title:
THE NORTHERN TRUST COMPANY
By:
------------------------------------
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
------------------------------------
Title:
UNION BANK OF SWITZERLAND
By:
------------------------------------
Title:
By:
------------------------------------
Title:
CIBC INC.
By:
------------------------------------
Title:
CITIBANK, N.A.
By:
------------------------------------
Title:
<PAGE>
64
COMMERZBANK AG, CHICAGO BRANCH
By:
------------------------------------
Title:
By:
------------------------------------
Title:
THE FUJI BANK, LIMITED
By:
------------------------------------
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH
By:
------------------------------------
Title:
ROYAL BANK OF CANADA
By:
------------------------------------
Title:
<PAGE>
65
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By:
------------------------------------
Title:
By:
------------------------------------
Title:
BANCA COMMERCIALE ITALIANA
By:
------------------------------------
Title:
By:
------------------------------------
Title:
BANQUE PARIBAS
By:
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE>
66
BOATMEN'S NATIONAL BANK OF ST. LOUIS
By:
------------------------------------
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
------------------------------------
Title:
FIRST BANK NATIONAL ASSOCIATION
By:
------------------------------------
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By:
------------------------------------
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH
By:
------------------------------------
Title:
NATIONSBANK, N.A.
By:
------------------------------------
Title:
<PAGE>
67
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Title:
THE SAKURA BANK, LIMITED
By:
------------------------------------
Title:
THE SANWA BANK LIMITED
By:
------------------------------------
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By:
------------------------------------
Title:
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.2
<SEQUENCE>3
<DESCRIPTION>364-DAY REVOLVING CREDIT AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 4.2
=============================================================================
BURLINGTON NORTHERN SANTA FE CORPORATION
_____________________________________
$500,000,000
AMENDED AND RESTATED
364-DAY REVOLVING CREDIT AGREEMENT
Dated as of November 15, 1996
_____________________________________
CHASE SECURITIES INC.
and
J.P. MORGAN SECURITIES INC.,
as Co-Arrangers,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . 17
SECTION 2. THE REVOLVING CREDIT LOANS . . . . . . . . . . . 17
2.1 The Commitments . . . . . . . . . . . . . . . . 18
2.2 Procedure for Revolving Credit Borrowing . . . 18
2.3 Repayment of Revolving Credit Loans . . . . . . 18
2.4 Commitment Increases . . . . . . . . . . . . . 18
SECTION 3. THE MONEY MARKET LOANS . . . . . . . . . . . . . 20
3.1 Money Market Option . . . . . . . . . . . . . . 20
3.2 Money Market Quote Request . . . . . . . . . . 20
3.3 Invitation for Money Market Quotes . . . . . . 21
3.4 Submission and Contents of Money Market Quotes 21
3.5 Notice to Borrower . . . . . . . . . . . . . . 22
3.6 Acceptance and Notice by Borrower . . . . . . . 22
3.7 Allocations . . . . . . . . . . . . . . . . . . 23
3.8 Certain Restrictions . . . . . . . . . . . . . 23
3.9 Repayment of Money Market Loans . . . . . . . . 23
SECTION 4. CERTAIN PROVISIONS APPLICABLE TO
THE COMMITMENTS AND THE LOANS . . . . . . 24
4.1 Fees . . . . . . . . . . . . . . . . . . . . . 24
4.2 Minimum Borrowing Amounts . . . . . . . . . . . 24
4.3 Termination or Reduction of Commitments . . . . 24
4.4 Optional Prepayments; Mandatory Prepayments . . 24
4.5 Conversion and Continuation Options . . . . . . 25
4.6 Minimum Amounts of Tranches . . . . . . . . . . 25
4.7 Interest Rates and Payment Dates . . . . . . . 26
4.8 Computation of Interest and Fees . . . . . . . 26
4.9 Evidence of Debt . . . . . . . . . . . . . . . 27
4.10 Basis for Determining Interest Rate Inadequate
or Unfair . . . . . . . . . . . . . . . . . . . 28
4.11 Illegality . . . . . . . . . . . . . . . . . . 28
4.12 Increased Cost and Reduced Return . . . . . . 29
4.13 Taxes . . . . . . . . . . . . . . . . . . . . 31
4.14 Base Rate Loans Substituted for Affected
Eurodollar Loans . . . . . . . . . . . . . . 34
4.15 Pro Rata Treatment and Payments . . . . . . . 34
4.16 Funding Losses . . . . . . . . . . . . . . . . 35
4.17 Replacement of Affected Lender . . . . . . . . 36
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SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . 36
5.1 Financial Condition . . . . . . . . . . . . . . 36
5.2 No Change . . . . . . . . . . . . . . . . . . . 36
5.3 Corporate Existence and Power . . . . . . . . . 36
5.4 Corporate and Governmental Authorization; Non
Contravention . . . . . . . . . . . . . . . . 37
5.5 Binding Effect . . . . . . . . . . . . . . . . 37
5.6 Litigation . . . . . . . . . . . . . . . . . . 37
5.7 Taxes . . . . . . . . . . . . . . . . . . . . . 37
5.8 Federal Regulations . . . . . . . . . . . . . . 38
5.9 ERISA . . . . . . . . . . . . . . . . . . . . . 38
5.10 Not an Investment Company . . . . . . . . . . 38
5.11 Subsidiaries . . . . . . . . . . . . . . . . . 38
5.12 Environmental Matters . . . . . . . . . . . . 38
5.13 Full Disclosure . . . . . . . . . . . . . . . 39
5.14 Limitation on Subsidiary Restrictions . . . . 39
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . 39
6.1 Conditions to Closing Date . . . . . . . . . . 39
6.2 Conditions to Each Loan . . . . . . . . . . . . 41
SECTION 7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . 41
7.1 Information . . . . . . . . . . . . . . . . . . 41
7.2 Maintenance of Properties; Insurance . . . . . 44
7.3 Conduct of Business and Maintenance of Existence 44
7.4 Compliance with Laws . . . . . . . . . . . . . 44
7.5 Use of Proceeds . . . . . . . . . . . . . . . . 45
7.6 Maintenance of Ownership of Railroads . . . . . 45
SECTION 8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . 45
8.1 Financial Condition Covenants . . . . . . . . . 45
8.2 Limitation on Debt . . . . . . . . . . . . . . 45
8.3 Limitation on Liens . . . . . . . . . . . . . . 46
8.4 Consolidations, Mergers and Sale of Assets . . 47
8.5 Limitation on Transactions with Affiliates . . 48
8.6 Limitation on Subsidiary Restrictions . . . . . 48
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . 48
9.1 Events of Default . . . . . . . . . . . . . . . 48
9.2 Notice of Default . . . . . . . . . . . . . . . 51
SECTION 10. THE AGENTS . . . . . . . . . . . . . . . . . . . 51
10.1 Appointment and Authorization . . . . . . . . 51
10.2 Agents and Affiliates . . . . . . . . . . . . 51
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10.3 Action by Agents . . . . . . . . . . . . . . . 51
10.4 Consultation with Experts; Delegation of Duties 52
10.5 Liability of Agents . . . . . . . . . . . . . 52
10.6 Indemnification of Agents . . . . . . . . . . 52
10.7 Credit Decision . . . . . . . . . . . . . . . 52
10.8 Successor Agents . . . . . . . . . . . . . . . 53
10.9 The Co-Arrangers. . . . . . . . . . . . . . . 53
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . 53
11.1 Amendments and Waivers . . . . . . . . . . . . 53
11.2 Notices . . . . . . . . . . . . . . . . . . . 54
11.3 No Waiver; Cumulative Remedies . . . . . . . . 55
11.4 Survival of Representations and Warranties . . 55
11.5 Expenses . . . . . . . . . . . . . . . . . . . 55
11.6 Successors and Assigns . . . . . . . . . . . . 55
11.7 Indemnification by the Borrower . . . . . . . 57
11.8 Adjustments . . . . . . . . . . . . . . . . . 58
11.9 Counterparts . . . . . . . . . . . . . . . . . 58
11.10 Severability . . . . . . . . . . . . . . . . 58
11.11 Integration . . . . . . . . . . . . . . . . . 58
11.12 GOVERNING LAW . . . . . . . . . . . . . . . . 59
11.13 Submission To Jurisdiction; Waivers . . . . . 59
11.14 Acknowledgments . . . . . . . . . . . . . . . 59
11.15 Certain Existing Lenders . . . . . . . . . . 60
11.16 WAIVERS OF JURY TRIAL . . . . . . . . . . . . 60
SCHEDULES:
Schedule I Bank Names, Addresses and Commitments
Schedule II Existing Debt
Schedule III Certain Litigation and Environmental Matters
EXHIBITS:
Exhibit A Form of Money Market Quote Request
Exhibit B Form of Invitation for Money Market Quotes
Exhibit C Form of Money Market Quote
Exhibit D Form of Notice of Money Market Borrowing
Exhibit E-1 Form of Opinion of Mayer, Brown & Platt
Exhibit E-2 Form of Opinion of General Counsel
Exhibit E-3 Form of Opinion of Simpson Thacher & Bartlett
Exhibit F Form of Assignment and Acceptance
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Exhibit G-1 Form of Revolving Credit Note
Exhibit G-2 Form of Money Market Note
Exhibit H Form of New Lender Supplement
Exhibit I Form of Commitment Increase Supplement
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AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AGREEMENT,
dated as of November 15, 1996, among:
(i) BURLINGTON NORTHERN SANTA FE CORPORATION, a
Delaware corporation (the "Borrower");
(ii) the several banks and other financial institutions
from time to time parties to this Agreement as Lenders (the "Lenders");
(iii) CHASE SECURITIES INC. and J.P. MORGAN SECURITIES
INC., as Co-Arrangers (in such capacity, the "Co- Arrangers");
(iv) THE CHASE MANHATTAN BANK, as Administrative Agent
(in such capacity, the "Administrative Agent"); and
(v) MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent (in such capacity, the "Documentation Agent").
W I T N E S S E T H :
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WHEREAS, the Borrower wishes to amend and restate its
364-Day Revolving Credit Agreement, dated as of November 21, 1995 (the
"Existing Credit Agreement"), among the Borrower, the Lenders, the
Co-Arrangers, the Administrative Agent and the Documentation Agent;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto hereby agree that
the Existing Credit Agreement is amended and restated in its entirety,
effective as of the Closing Date, as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Absolute Rate Auction": a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section
3.
"Accounts Receivable Financing": any transaction or series
of transactions that may be entered into by the Borrower or any of
its Subsidiaries pursuant to which the Borrower or any of its
Subsidiaries may sell, convey or otherwise transfer, or may grant a
security interest in, Receivables Program Assets (it being
understood that such transaction or transactions may, or may not, be
recorded as liabilities on the consolidated balance sheet of the
Borrower).
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"Accounts Receivable Financing Amount": with respect to
any Accounts Receivable Financing and without duplication, the
outstanding principal amount of obligations referred to in clause
(a) of the definition of Receivables Program Obligations.
"Administrative Agent": as defined in the Preamble to this
Agreement.
"Administrative Questionnaire": with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent (with
a copy to the Borrower) duly completed by such Lender.
"Affected Lender" means any Lender (i) that has demanded
compensation under subsection 4.12 or 4.13 or (ii) whose obligation
to make Eurodollar Loans has been suspended pursuant to subsection
4.11.
"Affiliate": each Controlling Person and each Person
(other than the Borrower or a Subsidiary) that is controlled by or
is under common control with a Controlling Person.
"Agents": the collective reference to the Administrative
Agent and the Documentation Agent.
"Agreement": this Amended and Restated $500,000,000
364-Day Revolving Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Lending Office": with respect to any Lender,
(a) in the case of its Base Rate Loans, its Domestic Lending Office,
(b) in the case of its Eurodollar Loans, its Eurodollar Lending
Office and (c) in the case of its Money Market Loans, its Money
Market Lending Office.
"Applicable Margin": for any Revolving Credit Loan on any
day, (a) in the case of Base Rate Loans, 0% and (b) in the case of
Eurodollar Loans, the rate per annum set forth below opposite the
applicable Rating in effect on such day:
Rating Applicable Margin
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Rating I .125%
Rating II .175
Rating III .20
Rating IV .25
Rating V .375
Rating VI .60
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; provided, that if on any day more than one Rating would be
applicable, the Applicable Margin shall be determined on the basis
of the higher of such Ratings (i.e., the Rating having the lower
numerical designation), unless such higher Rating is more than one
Rating category higher than the lower of such Ratings, in which
event the Applicable Margin will be determined on the basis of the
median Rating (or the higher of the intermediate Ratings if there is
no median Rating).
"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": each Assignment and
Acceptance, substantially in the form of Exhibit F, delivered
pursuant to subsection 11.6(c).
"Base Rate": for any day, a rate per annum equal to the
higher of (a) the Prime Rate for such day and (b) the sum of 1/2 of
1% plus the Federal Funds Rate for such day.
"Base Rate Loan": a Revolving Credit Loan bearing interest
based upon the Base Rate in accordance with this Agreement.
"Benefitted Lender": defined in subsection 11.8.
"Borrower": as defined in the Preamble to this Agreement.
"Borrowing Date": any Domestic Business Day or Eurodollar
Business Day, as the case may be, specified in a notice pursuant to
subsection 2.2 or 3.2 as a date on which the Borrower requests the
Lenders to make Loans hereunder.
"Burlington Northern Railroad": Burlington Northern
Railroad Company, a Delaware corporation, and its successors.
"Change of Control": a Change of Control shall be deemed
to occur (a) if a "person" (including any syndicate or group deemed
to be a "person" under Sections 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934) of
more than 30% of the then outstanding voting stock of the Borrower;
or (b) if the majority of the Board of Directors of the Borrower
shall not be Continuing Directors of the Borrower. For purposes of
this definition, "Continuing Directors" means, as of any date and
with respect to any Person, (i) individuals who on the date one year
prior to such date were members of such Person's Board of Directors
and (ii) any new Directors whose nomination for election by such
Person's shareholders was approved by a vote of at least a majority
of the Directors then still in office who either were Directors on
the date one year prior to such date or whose nomination for
election was previously so approved.
"Closing Date": the date on which the conditions precedent
set forth in subsection 6.1 shall be satisfied.
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"Co-Arrangers": as defined in the Preamble to this
Agreement.
"Committed Credit Facility": any credit facility pursuant
to which the lenders parties thereto have committed, subject to the
conditions set forth therein, to make loans or extend other credit
to the Borrower and/or any Material Subsidiary.
"Commitment": as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to the Borrower hereunder in
an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name under the
column "Commitment" on Schedule I (or such portion thereof assigned
to such Lender pursuant to subsection 11.6), as such amount may be
changed from time to time in accordance with the provisions of this
Agreement.
"Commitment Increase Notice": as defined in subsection
2.4(a).
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after all the Commitments
shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Loans then outstanding constitutes
of the aggregate principal amount of the Loans then outstanding).
"Commitment Period": the period from and including the
Closing Date to and including November 14, 1997.
"Consolidated Subsidiary": at any date, any Subsidiary or
other entity the accounts of which are consolidated with those of
the Borrower in its consolidated financial statements prepared in
accordance with GAAP as of such date.
"Consolidated Tangible Net Worth": at any date, the
consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries less their consolidated Intangible Assets,
all as included in a balance sheet prepared in accordance with GAAP
as of such date; for purposes of this definition, "Intangible
Assets" means the amount (to the extent reflected in such balance
sheet) of (a) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of assets of a going
concern business made within twelve months after the acquisition of
such business) subsequent to September 30, 1995 in the book value of
any asset owned by the Borrower or a Consolidated Subsidiary, (b)
all investments in unconsolidated Subsidiaries, (c) all equity
investments in Persons (other than Pipeline Partners and TTX
Company) that are not Subsidiaries to the extent that the aggregate
amount of all such investments exceeds $50,000,000, and (d) all
unamortized debt issuance costs, goodwill, patents, trademarks,
service marks, trade names, copyrights, organization or
developmental expenses and other intangible assets (other than
unamortized debt discount).
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"Consolidated Total Capital": at any date, the sum of (i)
Consolidated Total Debt at such date and (ii) Consolidated Tangible
Net Worth at such date.
"Consolidated Total Debt": the aggregate amount of all
Debt of the Borrower and its Consolidated Subsidiaries, plus all
related unamortized debt discount, plus any Accounts Receivable
Financing Amount, determined on a consolidated basis in accordance
with GAAP; provided that there shall not be counted for purposes of
determining Consolidated Total Debt (i) any Debt of Pipeline
Partners for which a Subsidiary is liable solely by virtue of being
a general partner of such debtor and (ii) the Accounts Receivable
Financing Amount of up to $350,000,000 in respect of Receivables
Program Obligations that do not constitute Debt.
"Controlling Person": any Person that is in control of the
Borrower (such control being the power to direct or cause a
direction of the management and policies of the Borrower, whether
through the ownership of voting stock, by contract or otherwise),
but the mere holding of a position as an officer or a director of
the Borrower shall not, in the absence of other factors, cause a
Person to be a Controlling Person.
"Crow Judgment": the judgment in effect on the date hereof
in respect of the case styled Estates of Red Wolf, Red Horse and
Bull Tail v. Burlington Northern Railroad Company, Case No. 94-31 in
the Crow Tribal Court.
"Debt": of any Person at any date, without duplication,
(a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (c) all accrued obligations of such
Person to pay the deferred purchase price of property or services,
except (i) any obligation with respect to an asset the purchase
price of which does not exceed $50,000, (ii) any obligation arising
in the ordinary course of business and payable in full in less than
one year and (iii) accounts payable or accrued expenses arising in
the ordinary course of business and payable in full in less than one
year, (d) all lease obligations of such Person as lessee which would
be capitalized in accordance with GAAP, (e) all Debt of others
secured by a Lien on any asset of such Person, whether or not such
Debt is otherwise an obligation of such Person (but only to the
extent of the fair market value of the asset subject to such Lien),
(f) all obligations of such Person in respect of acceptances issued
or created for the account of such Person and all obligations of
such Person which have become due and payable to reimburse the
issuing bank or other Person in respect of a letter of credit or
similar instrument issued for such Person's account, (g) any
obligations of the Borrower or any Subsidiary under Receivables
Documents to repurchase or otherwise insure the collectability of
Receivables Program Assets other than (i) any such obligations for
breach of warranty claims and (ii) any such obligations under
expense reimbursement provisions, indemnity provisions and interest
and yield protection provisions and (h) all obligations of others of
the character described in the foregoing clauses (a) through (g)
Guaranteed by such Person (but only to the extent of the maximum
liability of such Person under such Guarantee).
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"Default": any of the events specified in Section 9,
whether or not any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"Disposition": the sale, assignment, lease, exchange,
transfer or other disposition of any asset, other than equipment or
materials which are unfit or undesirable for use by the Borrower and
its Subsidiaries and disposed of in the ordinary course of business;
and "Dispose" shall be the verb form of such term.
"Documentation Agent": as defined in the Preamble to this
Agreement.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Business Day": any day except a Saturday, Sunday
or other day on which commercial banks in New York City or Chicago
are authorized by law to close.
"Domestic Lending Office": as to each Lender, its office
located at its address set forth in its Administrative Questionnaire
(or identified in its Administrative Questionnaire as its Domestic
Lending Office) or such other office as such Lender may hereafter
designate as its Domestic Lending Office by notice to the Borrower
and the Administrative Agent.
"Environmental Laws": any and all applicable federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees,
injunctions, permits, concessions, grants, franchises, licenses,
governmental agreements and other restrictions relating to the
environment, the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, or
Hazardous Substances or wastes into the environment including,
without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, or Hazardous Substances or
wastes or the clean-up or other remediation thereof.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group": the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which,
together with the Borrower or any Subsidiary, are treated as a
single employer under Section 414 of the Internal Revenue Code.
"Eurodollar Business Day": any Domestic Business Day on
which commercial banks are open for international business
(including dealings in Dollar deposits) in London.
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"Eurodollar Lending Office": as to each Lender, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Eurodollar Lending Office) or such other
office, branch or affiliate of such Lender as it may hereafter
designate as its Eurodollar Lending Office by notice to the Borrower
and the Administrative Agent.
"Eurodollar Loans": Revolving Credit Loans bearing
interest based upon the Eurodollar Rate in accordance with this
Agreement.
"Eurodollar Rate": for any Interest Period in respect of
Eurodollar Loans or Money Market LIBOR Loans, the average (rounded
upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in Dollars are offered
by each of the Reference Lenders to prime banks in the London
interbank market at approximately 11:00 A.M., London time, two
Eurodollar Business Days before the first day of such Interest
Period, for a period of time comparable to such Interest Period.
"Event of Default": any of the events specified in Section
9, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Facility Fee Calculation Amount": as to any Lender on any
date, the sum of (a) the outstanding principal amount of such
Lender's Revolving Credit Loans on such date and (b) the undrawn
amount of such Lender's Commitment. In calculating the "undrawn"
amount of any Lender's Commitment for purposes of clause (b) of this
definition, any reduction in the actual availability of such
Lender's Commitment caused by outstanding Money Market Loans shall
be disregarded.
"Facility Fee Rate": on any day, the rate per annum equal
to .075%.
"Federal Funds Rate": for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (a) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business Day as
so published on the next succeeding Domestic Business Day, and (b)
if no such rate is so published on such next succeeding Domestic
Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to The Chase Manhattan Bank on such day on such
transactions as determined by the Administrative Agent.
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"Five-Year Facility": the Amended and Restated Five-Year
Revolving Credit Agreement, dated the date hereof, among the
Borrower and the lenders, co-arrangers, and agents parties thereto,
as the same may be amended, supplemented or modified from time to
time.
"GAAP": generally accepted accounting principles as
defined and determined in accordance with subsection 1.2(b).
"Guarantee": by any Person, any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Debt or other obligation of any other Person and, without limiting
the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or
other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that
the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hazardous Substances": any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any
constituent elements displaying any of the foregoing
characteristics.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last day of each March, June, September and December, (b) as to any
Eurodollar Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any Eurodollar Loan
having an Interest Period longer than three months, each day which
is three months, or a whole multiple thereof, after the first day of
such Interest Period and the last day of such Interest Period, (d)
as to any Money Market Loan having an Interest Period of three
months or 90 days, as the case may be, or less, the last day of such
Interest Period and (e) as to any Money Market Loan having an
Interest Period longer than three months or 90 days, as the case may
be, each day which is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such
Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loan:
(i) in respect of any Revolving Credit Loan
borrowed as or converted into a Eurodollar Loan, the period
commencing on the borrowing or conversion date, as the case
may be, with respect to such Eurodollar Loan and ending
one, two, three or six months thereafter (or such shorter
period requested by the
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9
Borrower and approved by the Administrative Agent and the
Required Lenders), as selected (or requested) by the
Borrower in its Notice of Revolving Credit Borrowing or
Notice of Eurodollar Conversion, as the case may be, given
with respect thereto; and
(ii) in respect of any Eurodollar Loan
continued as a Eurodollar Loan for a subsequent Interest
Period, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three or six months thereafter
(or such shorter period requested by the Borrower and
approved by the Administrative Agent and the Required
Lenders), as selected (or requested) by the Borrower in its
Notice of Eurodollar Continuation given with respect
thereto;
provided, that all of the foregoing provisions relating to Interest
Periods in respect of Eurodollar Loans are subject to the following:
(A) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Eurodollar Business Day, such Interest Period shall be
extended to the next succeeding Eurodollar Business Day
unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding
Eurodollar Business Day;
(B) any Interest Period in respect of any
Eurodollar Loan that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(C) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Eurodollar Business Day of a
calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall, subject to clause (B)
above, end on the last Eurodollar Business Day of a
calendar month;
(b) with respect to each Money Market LIBOR Loan, the
period commencing on the date of such Loan specified in the
applicable Notice of Money Market Borrowing and ending such whole
number of months thereafter as the Borrower may elect in accordance
with Section 3; provided, that all of the foregoing provisions
relating to Interest Periods in respect of Money Market LIBOR Loans
are subject to the following:
(i) any Interest Period pertaining to a Money
Market LIBOR Loan that would otherwise end on a day that is
not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar
Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding
Eurodollar Business Day;
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10
(ii) any Interest Period pertaining to a
Money Market LIBOR Loan that begins on the last Eurodollar
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to
clause (iii) below, end on the last Eurodollar Business Day
of a calendar month; and
(iii) any Interest Period in respect of any
such Money Market Loan that would otherwise end after the
last day of the Commitment Period shall end on the last day
of the Commitment Period; and
(c) with respect to each Money Market Absolute Rate Loan,
the period commencing on the date of such Loan specified in the
applicable Notice of Money Market Borrowing and ending such number
of days thereafter (but not less than 1 nor more than 365 days) as
the Borrower may elect in accordance with Section 3; provided, that
all of the foregoing provisions relating to Interest Periods in
respect of Money Market Absolute Rate Loans are subject to the
following:
(i) any Interest Period pertaining to a Money
Market Absolute Rate Loan that would otherwise end on a day
that is not a Eurodollar Business Day shall be extended to
the next succeeding Eurodollar Business Day; and
(ii) any Interest Period in respect of any
such Money Market Loan that would otherwise end after the
last day of the Commitment Period shall end on the last day
of the Commitment Period.
"Interest Rate Agreement": an interest rate protection
agreement, interest rate future, interest rate option, interest rate
cap or other interest rate hedge arrangement, providing to the
Borrower protection against increases in interest rates.
"Internal Revenue Code": the Internal Revenue Code of
1986, as amended, or any successor statute.
"Invitation for Money Market Quotes": each request by the
Borrower, delivered by the Administrative Agent, for Lenders to
submit bids to make Money Market Loans, which shall contain the
information in respect of such requested Money Market Loans
specified in Exhibit B and shall be delivered to the Lenders in
writing, by telecopy, or by telephone, immediately confirmed by
telecopy.
"Lenders": as defined in the Preamble to this Agreement;
such term shall include Lenders that are parties to this Agreement
on the date hereof and Lenders that become parties to this Agreement
pursuant to subsection 11.6(c) or subsection 2.4.
"LIBOR Auction": a solicitation of Money Market Quotes
setting forth Money Market Margins based on the Eurodollar Rate
pursuant to Section 3.
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11
"Lien": any mortgage, pledge, hypothecation, assignment
(to the extent such assignment is intended to secure an obligation
of any Person), encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other
security agreement or, if they have the same economic effect as any
of the foregoing, any preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or
other title retention agreement and any capitalized lease).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Material Plan": at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $20,000,000.
"Material Subsidiary": Burlington Northern Inc.,
Burlington Northern Railroad, Santa Fe Pacific Corporation, Santa Fe
Railroad, BN Leasing Corporation and any other Subsidiary of the
Borrower the consolidated assets of which, as would be shown in a
consolidated balance sheet as at the last day of its most recently
ended fiscal year determined in accordance with GAAP, are in excess
of 5% of Consolidated Tangible Net Worth as of the last day of the
most recently ended fiscal year, provided that notwithstanding the
foregoing, neither SFP Pipeline Holdings, Inc. or any of its
Subsidiaries nor Santa Fe Receivables Corporation shall be deemed to
be a Material Subsidiary. Unless otherwise specified, references in
this Agreement to "Material Subsidiary" shall be references to a
Material Subsidiary of the Borrower.
"Money Market Absolute Rate": as defined in subsection
3.4(b)(iv).
"Money Market Absolute Rate Loan": a Loan to be made by a
Lender pursuant to an Absolute Rate Auction.
"Money Market Lending Office": as to each Lender, its
Domestic Lending Office or such other office, branch or affiliate of
such Lender as it may hereafter designate as its Money Market
Lending Office by notice to the Borrower and the Administrative
Agent; provided that any Lender may from time to time by notice to
the Borrower and the Administrative Agent designate separate Money
Market Lending Offices for its Money Market LIBOR Loans, on the one
hand, and its Money Market Absolute Rate Loans, on the other hand,
in which case all references herein to the Money Market Lending
Office of such Lender shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan": a Loan to be made by a Lender
pursuant to a LIBOR Auction (including such a loan bearing interest
at the Base Rate pursuant to clause (ii) of the last sentence of
subsection 4.10).
"Money Market Loan": a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
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12
"Money Market Margin": as defined in subsection
3.4(b)(iii).
"Money Market Note": as defined in subsection 4.9(d).
"Money Market Quote": each offer by a Lender to make Money
Market Loans pursuant to an Invitation for Money Market Quotes,
which Money Market Quote shall contain the information specified in
Exhibit C and shall be delivered to the Administrative Agent by
telecopy.
"Money Market Quote Request": each request by the Borrower
for Lenders to submit bids to make Money Market Loans, which shall
contain the information in respect of such requested Money Market
Loans specified in Exhibit A and shall be delivered to the
Administrative Agent by telecopy.
"Moody's": Moody's Investors Service, Inc.
"Moody's Rating": for any day, the rating of the
Borrower's senior unsecured, non-credit-enhanced debt by Moody's in
effect at 9:00 A.M., New York City time, on such day; provided, that
if such debt of the Borrower shall not be rated by such rating
agency, such Rating shall be such rating agency's counterparty or
similar rating specifically assigned by such rating agency to the
Borrower. If Moody's shall have changed its system of
classifications after the date hereof, the Moody's Rating shall be
considered to be at or above a specified level if it is at or above
the new rating which most closely corresponds to the specified level
under the old rating system.
"Multiemployer Plan": at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to
which (a) any member of the ERISA Group is then making or accruing
an obligation to make contributions or (b) any Person, who was at
the time of such contribution a member of the ERISA Group, has
within the preceding five plan years made contributions.
"New Lender": as defined in subsection 2.4(b).
"Notes": the collective reference to the Revolving Credit
Notes and the Money Market Notes.
"Notice of Base Rate Conversion": as defined in subsection
4.5(a); each such notice shall be delivered in writing or by
telecopy and shall specify the principal amount of the Eurodollar
Loans being converted to Base Rate Loans pursuant thereto.
"Notice of Eurodollar Continuation": as defined in
subsection 4.5(b); each such notice shall be delivered in writing or
by telecopy and shall specify the length or lengths of the Interest
Periods to be applicable to the Eurodollar Loans being continued
pursuant thereto.
<PAGE>
13
"Notice of Eurodollar Conversion": as defined in
subsection 4.5(a); each such notice shall be delivered in writing or
by telecopy and shall specify the principal amount of Base Rate
Loans being converted to Eurodollar Loans pursuant thereto and the
length or lengths of the initial Interest Period(s) applicable
thereto.
"Notice of Money Market Borrowing": each confirmation by
the Borrower of its acceptance of Money Market Quotes, which Notice
of Money Market Borrowing shall be substantially in the form of
Exhibit D and shall be delivered to the Administrative Agent by
telecopy.
"Notice of Revolving Credit Borrowing": an irrevocable
notice from the Borrower, delivered pursuant to subsection 2.2,
requesting the Lenders to make Revolving Credit Loans; each such
notice shall be delivered in writing or by telecopy and shall
specify (i) the amount of such Loans, (ii) whether such Loans are to
be initially Eurodollar Loans, Base Rate Loans or a combination
thereof, and (iii) if such Loans are to be entirely or partly
Eurodollar Loans, the respective amounts of each such Type of Loan
and the length of the initial Interest Period for such Eurodollar
Loans.
"Offered Increase Amount": as defined in subsection
2.4(a).
"Participant": as defined in subsection 11.6(b).
"PBGC": the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity
of whatever nature.
"Pipeline Partners": Santa Fe Pacific Pipeline Partners,
L.P., a Delaware limited partnership.
"Plan": at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412
of the Internal Revenue Code and either (i) is maintained, or
contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the
preceding five years been maintained, or contributed to, by any
Person which was at the time of such maintenance or contribution a
member of the ERISA Group for employees of any Person which was at
such time a member of the ERISA Group.
"Prime Rate": the rate of interest publicly announced from
time to time by The Chase Manhattan Bank as its prime rate at its
principal office in New York City.
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14
"Rating": as applicable, Rating I, Rating II, Rating III,
Rating IV, Rating V or Rating VI.
"Rating I": applies on any day on which the S&P Rating is
at or above A and the Moody's Rating is at or above A2.
"Rating II": applies on any day on which (i) the S&P
Rating is A- or above or the Moody's Rating is A3 or above and (ii)
Rating I does not apply.
"Rating III": applies on any day on which the S&P Rating
is BBB+ or the Moody's Rating is Baa1.
"Rating IV": applies on any day on which the S&P Rating is
BBB or the Moody's Rating is Baa2.
"Rating V": applies on any day on which the S&P Rating is
BBB- or the Moody's Rating is Baa3.
"Rating VI": applies on any day on which none of Rating I,
Rating II, Rating III, Rating IV or Rating V applies (including,
without limitation, any day on which there is no Moody's Rating and
no S&P Rating).
"Re-Allocation Date": as defined in subsection 2.4(d).
"Receivables Documents": a receivables purchase agreement
entered into by the Borrower, a Selling Subsidiary and/or a
Receivables Subsidiary and each other instrument, agreement and
other document entered into by the Borrower or any Selling
Subsidiary or Receivables Subsidiary relating to the transactions
contemplated by such receivables purchase agreement, including but
not limited to the transfer of the Receivables Program Assets by the
Borrower and the Selling Subsidiaries pursuant to such receivables
purchase agreement.
"Receivables Program Assets": (a) all rights of the
Borrower or any Selling Subsidiary to payments (whether constituting
accounts, chattel paper, instruments, general intangibles or
otherwise, and including the right to payment of any interest or
finance charges) which are transferred by the Borrower, a Selling
Subsidiary or a Receivables Subsidiary pursuant to the Receivables
Documents, (b) all rights, title and interest of the Borrower, a
Selling Subsidiary or a Receivables Subsidiary in goods relating to
a sale that gave rise to such rights to payment, (c) security
interests or liens (and the property subject thereto) purporting to
secure such rights to payment, (d) all guaranties and other
agreements or arrangements of whatever character from time to time
supporting such rights to payment, (e) lock-boxes and bank accounts
of the Borrower, any Selling Subsidiary or a Receivables Subsidiary
in which proceeds of any of the foregoing are held, and all
investments from such accounts and other claims and rights in
<PAGE>
15
connection therewith, (f) rights and interests of a Receivables
Subsidiary under Receivables Documents, and (g) all collections
(including recoveries) and other proceeds of the assets described in
the foregoing clauses.
"Receivables Program Obligations": (a) notes, trust
certificates, undivided interests, partnership interests or other
interests representing the right to be paid a specified principal
amount from the Receivables Program Assets, and (b) related
obligations of the Borrower, a Subsidiary or a Special Purpose
Vehicle (including, without limitation, rights in respect of
interest or yield, breach of warranty claims and expense
reimbursement and indemnity provisions).
"Receivables Subsidiary": a special purpose Wholly-Owned
Subsidiary created in connection with the transactions contemplated
by an Accounts Receivable Financing, which Subsidiary engages in no
activities other than those incidental to such Accounts Receivable
Financing.
"Reference Lenders": The Chase Manhattan Bank, Morgan
Guaranty Trust Company of New York and Union Bank of Switzerland.
"Register": as defined in subsection 11.6(f).
"Regulation G": Regulation G of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"Required Lenders": at any time Lenders the Commitment
Percentages of which aggregate at least 51%.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 4.9(d).
"S&P": Standard & Poor's Ratings Group.
"S&P Rating": for any day, the rating of the Borrower's
senior unsecured, non credit-enhanced debt by S&P in effect at 9:00
A.M., New York City time, on such day; provided, that if such debt
of the Borrower shall not be rated by such rating agency, such
Rating shall be such rating agency's counterparty or similar rating
specifically assigned by such rating agency to the Borrower. If S&P
shall have changed its system of classifications after the date
hereof, the S&P Rating shall be considered to be at or above a
specified level if it is at or above the new rating which most
closely corresponds to the specified level under the old rating
system.
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16
"Santa Fe Railroad": The Atchison, Topeka and Santa Fe
Railway Company, a Delaware corporation, and its successors.
"Selling Subsidiary": any Subsidiary other than a
Receivables Subsidiary which is a party to a Receivables Document.
"Special Purpose Vehicle": a trust, partnership or other
special purpose Person established by the Borrower and/or its
Subsidiaries to implement an Accounts Receivable Financing.
"Specified Obligations": with respect to any Person, the
collective reference to (a) the Debt of such Person and (b) the
obligations of such Person to make payments to counterparties under
Interest Rate Agreements in the event of the occurrence of a
termination event thereunder.
"Subsidiary": any corporation or other entity of which
securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly
owned by the Borrower (or, if such term is used with reference to
any other Person, by such other Person). Unless otherwise
specified, references in this Agreement to "Subsidiary" shall be
references to a Subsidiary of the Borrower.
"Termination Date": November 15, 1998 (or such earlier
date on which the Commitments shall terminate pursuant to the terms
of this Agreement).
"Tranche": the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin
on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Type": (a) as to any Revolving Credit Loan, its nature as
a Base Rate Loan or a Eurodollar Loan and (b) as to any Money Market
Loan, its nature as a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Unfunded Liabilities": with respect to any Plan at any
time, the amount (if any) by which (a) the value of all benefit
liabilities under such Plan, determined on a plan termination basis
using the assumptions prescribed by the PBGC for purposes of Section
4044 of ERISA, exceeds (b) the fair market value of all Plan assets
allocable to such liabilities under Title IV of ERISA (excluding any
accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the
ERISA Group to the PBGC or any other Person under Title IV of ERISA.
"United States": the United States of America, including
the States and the District of Columbia, but excluding its
territories and possessions.
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17
"Wholly-Owned Subsidiary": any Subsidiary all of the
shares of capital stock or other ownership interests of which
(except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower (or, if such term is used with
reference to any other Person, by such other Person).
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the
defined meanings when used in any Note, certificate or other document made
or delivered pursuant hereto.
(b) Unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time in the United States,
applied on a basis consistent (except for changes concurred with by the
Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Lenders; provided, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any
covenant in Section 8 to eliminate the effect of any change in generally
accepted accounting principles on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Section 8 for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Lenders.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. THE REVOLVING CREDIT LOANS
2.1 The Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit
loans ("Revolving Credit Loans") to the Borrower from time to time during
the Commitment Period in an aggregate principal amount at any one time
outstanding not to exceed the amount of such Lender's Commitment; provided,
that no Revolving Credit Loan may be made if, after giving effect to such
Loan and to any simultaneous repayment of outstanding Loans, the aggregate
outstanding principal amount of Revolving Credit Loans and Money Market
Loans would exceed the aggregate amount of the Commitments. During the
Commitment Period the Borrower may use the Commitments by
<PAGE>
18
borrowing Revolving Credit Loans, prepaying Revolving Credit Loans in whole
or in part, and reborrowing Revolving Credit Loans, all in accordance with
the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be
(i) Eurodollar Loans, (ii) Base Rate Loans or (iii) a combination thereof,
as determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 2.2 and 4.5.
2.2 Procedure for Revolving Credit Borrowing. The
Borrower shall request Revolving Credit Loans by delivering a Notice of
Revolving Credit Borrowing to the Administrative Agent prior to 10:00 A.M.,
New York City time, (a) three Eurodollar Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving
Credit Loans are to be initially Eurodollar Loans or (b) on such Borrowing
Date, otherwise, requesting the Lenders to make Revolving Credit Loans on
such Borrowing Date. Upon receipt of such Notice of Revolving Credit
Borrowing the Administrative Agent shall promptly notify each Lender
thereof, and not later than 12:00 noon, New York City time, on such
Borrowing Date each Lender shall make available to the Administrative Agent
at its office specified in subsection 11.2 the amount of the Revolving
Credit Loan to be made by such Lender on such Borrowing Date, in immediately
available funds. The Administrative Agent shall on such Borrowing Date make
available to the Borrower the aggregate of the amounts made available to the
Administrative Agent by the Lenders, in like funds as received by the
Administrative Agent.
2.3 Repayment of Revolving Credit Loans. The Borrower
hereby unconditionally promises to pay to the Administrative Agent, for the
account of each Lender, on the Termination Date, the aggregate principal
amount of the Revolving Credit Loans of such Lender outstanding on such
date.
2.4 Commitment Increases. (a) In the event that the
Borrower wishes to increase the aggregate Commitments at any time that no
Default or Event of Default has occurred and is continuing, it shall notify
the Administrative Agent in writing of the amount (the "Offered Increase
Amount") of such proposed increase (such notice, a "Commitment Increase
Notice"). The Borrower may, at its election, (i) offer one or more of the
Lenders the opportunity to participate in all or a portion of the Offered
Increase Amount pursuant to subsection (c) below and/or (ii) with the
consent of the Administrative Agent (which consent shall not be unreasonably
withheld), offer one or more additional banks, financial institutions or
other entities the opportunity to participate in all or a portion of the
Offered Increase Amount pursuant to paragraph (b) below. Each Commitment
Increase Notice shall specify which Lenders and/or banks, financial
institutions or other entities the Borrower desires to participate in such
commitment increase. The Borrower or, if requested by the Borrower, the
Administrative Agent will notify such Lenders, and/or banks, financial
institutions or other entities of such offer.
(b) Any additional bank, financial institution or other
entity which the Borrower selects to offer participation in the increased
Commitments and which elects to become a party to this Agreement and obtain
a Commitment in an amount so offered and accepted by it pursuant to
subsection 2.4(a)(ii) shall execute a New Lender Supplement with the
Borrower and the
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19
Administrative Agent, substantially in the form of Exhibit H, whereupon such
bank, financial institution or other entity (herein called a "New Lender")
shall become a Lender for all purposes and to the same extent as if
originally a party hereto and shall be bound by and entitled to the benefits
of this Agreement, and Schedule I shall be deemed to be amended to add the
name and Commitment of such New Lender, provided that the Commitment of any
such new Lender shall be in an amount not less than $10,000,000.
(c) Any Lender which accepts an offer to it by the
Borrower to increase its Commitment pursuant to subsection 2.4(a)(i) shall,
in each case, execute a Commitment Increase Supplement with the Borrower and
the Administrative Agent, substantially in the form of Exhibit I, whereupon
such Lender shall be bound by and entitled to the benefits of this Agreement
with respect to the full amount of its Commitment as so increased, and
Schedule I shall be deemed to be amended to so increase the Commitment of
such Lender.
(d) If any bank, financial institution or other entity
becomes a New Lender pursuant to subsection 2.4(b) or any Lender's
Commitment is increased pursuant to subsection 2.4(c), additional Revolving
Credit Loans made on or after the effectiveness thereof (the "Re-Allocation
Date") shall be made pro rata based on the Commitment Percentages in effect
on and after such Re-Allocation Date (except to the extent that any such pro
rata borrowings would result in any Lender making an aggregate principal
amount of Revolving Credit Loans in excess of its Commitment, in which case
such excess amount will be allocated to, and made by, such new Lenders
and/or Lenders with such increased Commitments to the extent of, and pro
rata based on, their respective Commitments otherwise available for
Revolving Credit Loans), and continuations of Eurodollar Loans outstanding
on such Re-Allocation Date shall be effected by repayment of such Eurodollar
Loans on the last day of the Interest Period applicable thereto and the
making of new Eurodollar Loans pro rata based on such new Commitment
Percentages. In the event that on any such Re-Allocation Date there is an
unpaid principal amount of Base Rate Loans, the Borrower shall make
prepayments thereof and borrowings of Base Rate Loans so that, after giving
effect thereto, the Base Rate Loans outstanding are held pro rata based on
such new Commitment Percentages. In the event that on any such
Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans,
such Eurodollar Loans shall remain outstanding with the respective holders
thereof until the expiration of their respective Interest Periods (unless
the Borrower elects to prepay any thereof in accordance with the applicable
provisions of this Agreement), and interest on and repayments of such
Eurodollar Loans will be paid thereon to the respective Lenders holding such
Eurodollar Loans pro rata based on the respective principal amounts thereof
outstanding.
(e) Notwithstanding anything to the contrary in this
subsection 2.4, (i) in no event shall any transaction effected pursuant to
this subsection 2.4 cause (A) the aggregate Commitments to exceed
$1,000,000,000 or (B) the sum of the aggregate Commitments plus the
aggregate Commitments then in effect under (and as defined in) the Five-Year
Facility to exceed $2,500,000,000, and (ii) no Lender shall have any
obligation to increase its Commitment unless it agrees to do so in its sole
discretion.
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20
SECTION 3. THE MONEY MARKET LOANS
3.1 Money Market Option. The Borrower may, as set forth
in this Section, at any time during the Commitment Period request the
Administrative Agent to solicit offers from all the Lenders to make Money
Market Loans to the Borrower. The Lenders may, but shall have no obligation
to, make such offers, and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section. No Money
Market Loan may be made if, after giving effect to such Loan and to any
simultaneous repayment of outstanding Loans, the aggregate outstanding
principal amount of Revolving Credit Loans and Money Market Loans would
exceed the aggregate amount of the Commitments.
3.2 Money Market Quote Request. When the Borrower wishes
to request offers to make Money Market Loans under this Section, it shall
transmit to the Administrative Agent by facsimile transmission a Money
Market Quote Request so as to be received no later than Noon, New York City
time, (a) four Eurodollar Business Days prior to the Borrowing Date proposed
therein, in the case of a LIBOR Auction or (b) one Business Day prior to the
Borrowing Date proposed therein, in the case of an Absolute Rate Auction (or
(x) in either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have notified to
the Lenders not later than the date of the Money Market Quote Request for
the first LIBOR Auction or Absolute Rate Auction for which such change is to
be effective and (y) in the case of an Absolute Rate Auction for a proposed
Borrowing Date occurring on the Closing Date, not later than 9:00 A.M., New
York City time, on the Closing Date), specifying:
(i) the proposed Borrowing Date, which shall be a
Eurodollar Business Day in the case of a LIBOR Auction or a Domestic
Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Loans, which shall be
$5,000,000 or a larger whole multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, and
(iv) whether the Money Market Quotes requested are to
set forth a Money Market Margin or a Money Market Absolute Rate.
3.3 Invitation for Money Market Quotes. The
Administrative Agent, promptly upon receipt of any Money Market Quote
Request, shall send to the Lenders by facsimile transmission an Invitation
for Money Market Quotes, which shall constitute an invitation by the
Borrower to each Lender to submit Money Market Quotes offering to make the
Money Market Loans to which such Money Market Quote Request relates in
accordance with this Section.
3.4 Submission and Contents of Money Market Quotes. (a)
Each Lender may submit, as it may elect in its sole discretion, a Money
Market Quote containing an offer or offers
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21
to make Money Market Loans in response to any Invitation for Money Market
Quotes. Each Money Market Quote must comply with the requirements of this
subsection 3.4 and must be submitted to the Administrative Agent by
facsimile transmission at its offices specified in or pursuant to subsection
11.2 not later than (i) 10:00 A.M., New York City time, three Eurodollar
Business Days prior to the proposed Borrowing Date, in the case of a LIBOR
Auction, or (ii) 10:00 A.M., New York City time, on the proposed Borrowing
Date, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the
date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective); provided
that Money Market Quotes submitted by the Administrative Agent (or any
affiliate of the Administrative Agent) in the capacity of a Lender may be
submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers
contained therein not later than 15 minutes prior to the deadline for the
other Lenders. Subject to Sections 6 and 9, any Money Market Quote so made
shall be irrevocable except with the written consent of the Administrative
Agent given on the instructions of the Borrower.
(b) Each Money Market Quote shall in any case specify:
(i) the proposed Borrowing Date,
(ii) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount (A) may
be greater than or less than the Commitment of the quoting Lender,
(B) must be $5,000,000 or a larger whole multiple of $1,000,000, and
(C) may be subject to an aggregate limitation as to the principal
amount of Money Market Loans for which offers being made by such
quoting Lender may be accepted,
(iii) in the case of a LIBOR Auction, the margin above or
below the applicable Eurodollar Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/16 of 1%) to be added to or subtracted
from the Eurodollar Rate,
(iv) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000 of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market
Loan, and
(v) the identity of the quoting Lender.
A Money Market Quote may set forth up to three separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Money Market Quotes.
(c) Any Money Market Quote shall be disregarded if it:
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22
(i) is not substantially in conformity with Exhibit C or
does not specify all of the information required by subsection
3.4(b);
(ii) contains qualifying, conditional or similar language;
(iii) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(iv) arrives after the time set forth in subsection
3.4(a).
3.5 Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (a) of any Money Market Quote
submitted by a Lender that is in accordance with subsection 3.4 and (b) of
any Money Market Quote that amends, modifies or is otherwise inconsistent
with a previous Money Market Quote submitted by such Lender with respect to
the same Money Market Quote Request. Any such subsequent Money Market Quote
shall be disregarded by the Administrative Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Administrative Agent's notice to the Borrower
shall specify (i) the aggregate principal amount of Money Market Loans for
which offers have been received for each Interest Period specified in the
related Money Market Quote Request, (ii) the respective principal amounts
and Money Market Margins or Money Market Absolute Rates, as the case may be,
so offered and (iii) if applicable, limitations on the aggregate principal
amount of Money Market Loans for which offers in any single Money Market
Quote may be accepted.
3.6 Acceptance and Notice by Borrower. Not later than
11:00 A.M., New York City time, (a) three Eurodollar Business Days prior to
the proposed Borrowing Date, in the case of a LIBOR Auction or (b) on the
proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Lenders not
later than the date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective),
the Borrower shall notify the Administrative Agent of its acceptance or
non-acceptance of the offers notified to it pursuant to subsection 3.5. In
the case of acceptance, such notice shall be a Notice of Money Market
Borrowing and shall specify the aggregate principal amount of offers for
each Interest Period that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of Money Market
Loans made pursuant to a Money Market Quote Request may not exceed
the applicable amount set forth in such Money Market Quote Request,
(ii) the principal amount of Money Market Loans made on
a Borrowing Date pursuant to a Money Market Quote Request must be
$5,000,000 or a larger whole multiple of $1,000,000,
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23
(iii) acceptance of offers may only be made on the basis
of ascending Money Market Margins or Money Market Absolute Rates, as
the case may be, and
(iv) the Borrower may not accept any offer that is
required to be disregarded as described in subsection 3.4(c) or that
otherwise fails to comply substantially with the requirements of
this Agreement.
3.7 Allocations. If offers are made by two or more Lenders
with the same Money Market Margins or Money Market Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period,
the principal amount of Money Market Loans in respect of which such offers
are accepted shall be allocated by the Administrative Agent among such
Lenders as nearly as possible (in whole multiples of $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Administrative
Agent of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error. Upon acceptance, notice and allocation of Money
Market Quotes pursuant to and in accordance with subsections 3.6 and 3.7,
the Administrative Agent will, in accordance with its usual practice, notify
each Lender whose Money Market Quote has been accepted of the amount of its
Money Market Quote accepted and allocated.
3.8 Certain Restrictions. The Borrower may request offers
to make Money Market Loans for up to five Interest Periods in a single Money
Market Quote Request.
3.9 Repayment of Money Market Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent, for the account
of the relevant Lender, on the last day of the Interest Period with respect
thereto, the aggregate principal amount of each Money Market Loan of such
Lender.
SECTION 4. CERTAIN PROVISIONS APPLICABLE TO
THE COMMITMENTS AND THE LOANS
4.1 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee for the
period from and including the Closing Date to the date on which the
Commitments have terminated and all Loans have been repaid in full, computed
at the Facility Fee Rate, in each case on the average daily Facility Fee
Calculation Amount of such Lender during the period for which payment is
made, payable in arrears on the last day of each March, June, September and
December and on the date on which the Commitments have terminated and all
Loans have been repaid in full, commencing on the first of such dates to
occur after the date of this Agreement.
(b) The Borrower agrees to pay to each Agent and each
Co-Arranger the fees on the dates and in the amounts previously agreed to in
writing by the Borrower and such respective Persons.
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24
4.2 Minimum Borrowing Amounts. Each borrowing under the
Commitments shall be in an amount equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof.
4.3 Termination or Reduction of Commitments. (a) The
Borrower shall have the right, upon notice to the Administrative Agent not
later than 11:00 A.M., New York City time, on the date of such action, to
terminate any of the Commitments or, from time to time, to reduce the amount
of any of the Commitments; provided, that no reduction of the Commitments
shall be permitted if, after giving effect thereto and to any simultaneous
repayment of Revolving Credit Loans and/or Money Market Loans, the aggregate
outstanding principal amount of the Revolving Credit Loans and Money Market
Loans would exceed the Commitments. Any reduction of any of the Commitments
shall be in an amount equal to $10,000,000 or a whole multiple of $1,000,000
in excess thereof and shall reduce permanently the Commitments then in
effect. The Administrative Agent will, in accordance with its usual
practice, notify the Lenders of each such notice of termination or
reduction.
(b) If on any date after the end of the Commitment Period,
after giving effect to any repayments of Loans on such date, the amount of
the Commitments exceeds the aggregate outstanding principal amount of the
Loans, the Commitments shall be automatically permanently reduced by the
amount of such excess.
4.4 Optional Prepayments; Mandatory Prepayments. (a) The
Borrower may, (i) upon notice to the Administrative Agent not later than
11:00 A.M., New York City time, on the date of prepayment, prepay any Base
Rate Loans (or any Money Market Loans bearing interest based upon the Base
Rate pursuant to clause (ii) of the last sentence of subsection 4.10) or
(ii) upon at least three Eurodollar Business Days' notice to the
Administrative Agent, prepay any Eurodollar Loans, in each case in whole or
in part in amounts aggregating $5,000,000 or any larger whole multiple of
$1,000,000, by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. Upon prepaying any
Eurodollar Loan on any date other than the last day of an Interest Period
applicable thereto, the Borrower shall be obligated to pay the amounts
described in subsection 4.16.
(b) Except as provided in subsection 4.4(a) with respect
to a Money Market Loan bearing interest based upon the Base Rate pursuant to
clause (ii) of the last sentence of subsection 4.10 and in subsection
4.4(d), the Borrower may not prepay all or any portion of the principal
amount of any Money Market Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to
this subsection 4.4, the Administrative Agent shall promptly notify each
Lender of the contents thereof and of such Lender's ratable share (if any)
of such prepayment, and such notice shall not thereafter be revocable by the
Borrower.
(d) If a Change of Control shall occur with respect to the
Borrower, the Administrative Agent shall, upon the request of the Required
Lenders, by notice to the Borrower given within six months after the date of
such Change of Control, terminate the Commitments,
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25
whereupon the Commitments shall immediately terminate, and any Loans then
outstanding (together with accrued interest thereon) shall become due and
payable on the fifth Eurodollar Business Day after such notice is given.
4.5 Conversion and Continuation Options. (a) The
Borrower may, on the last day of any Interest Period with respect thereto,
convert Eurodollar Loans to Base Rate Loans by giving notice thereof (a
"Notice of Base Rate Conversion") to the Administrative Agent not later than
10:00 A.M., New York City time, on the last day of the then current Interest
Period in respect of the Eurodollar Loans being converted. The Borrower may
from time to time convert Base Rate Loans to Eurodollar Loans by giving
notice thereof (a "Notice of Eurodollar Conversion") to the Administrative
Agent at least three Eurodollar Business Days prior to the first day of the
Interest Period to be applicable to such Loans. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof.
All or any part of outstanding Eurodollar Loans and Base Rate Loans may be
converted as provided herein, provided that no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing.
(b) The Borrower may continue any Eurodollar Loans as such
upon the expiration of the then current Interest Period with respect thereto
by giving notice thereof (a "Notice of Eurodollar Continuation") to the
Administrative Agent at least three Eurodollar Business Days prior to the
last day of such then current Interest Period, provided that no Eurodollar
Loan may be continued as such when any Event of Default has occurred and is
continuing, and provided, further, that if the Borrower shall fail to give
such Notice of Eurodollar Continuation or if such continuation is not
permitted pursuant to the preceding proviso, such Loans shall be
automatically converted to Base Rate Loans on the last day of such then
expiring Interest Period.
4.6 Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of Eurodollar Loans comprising each Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Not more
than twenty Tranches may be outstanding at any time.
4.7 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) Each Money Market Loan shall bear interest at the
applicable rate set forth in the Notice of Money Market Borrowing applicable
thereto.
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26
(d) If any principal amount of any Loan shall not be paid
when due, from and after the date on which such principal amount was due (i)
the outstanding principal amount of all Eurodollar Loans and Money Market
Loans shall bear interest at 2% above the rate that would otherwise be
applicable thereto until the earlier of (A) the date on which such overdue
principal amount is paid in full and (B) the last day of the respective
Interest Periods applicable to such outstanding Eurodollar Loans and Money
Market Loans, and thereafter the outstanding principal amount of all
Eurodollar Loans and Money Market Loans shall bear interest at a rate equal
to 2% above the rate applicable at such time to Base Rate Loans until such
overdue principal amount is paid in full (as well after as before judgment)
and (ii) the outstanding principal amount of all Base Rate Loans shall bear
interest at a rate equal to 2% above the rate applicable at such time to
Base Rate Loans until such overdue principal amount is paid in full (as well
after as before judgment). If all or a portion of (i) any interest payable
on any Loan or (ii) any facility fee or other amount payable hereunder,
shall not be paid when due (whether at the stated maturity, by acceleration
or otherwise), such overdue amount shall bear interest at a rate per annum
which is 2% above the rate applicable at such time to Base Rate Loans, in
each case from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of
this subsection shall be payable from time to time on demand.
4.8 Computation of Interest and Fees. (a) Facility fees
and, whenever it is calculated on the basis of the Prime Rate, interest
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed; and, otherwise, interest shall be
calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and
the relevant Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the Base Rate
shall become effective as of the opening of business on the day on which
such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and
the amount of each such change in the Base Rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error.
(c) If any Reference Lender shall for any reason no longer
have a Commitment or any Loans, such Reference Lender shall thereupon cease
to be a Reference Lender, and if, as a result, there shall only be one
Reference Lender remaining, the Administrative Agent (after consultation
with the Borrower and the Lenders) shall, by notice to the Borrower and the
Lenders, designate another Lender as a Reference Lender so that there shall
at all times be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated
hereby. If any of the Reference Lenders shall be
<PAGE>
27
unable or shall otherwise fail to supply such rates to the Administrative
Agent upon its request, the rate of interest shall, subject to the
provisions of subsection 4.10, be determined on the basis of the quotations
of the remaining Reference Lenders or Reference Lender.
4.9 Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice appropriate records evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement and
under any Note.
(b) The Administrative Agent shall maintain the Register
pursuant to subsection 11.6(f), and a record therein for each Lender, in
which shall be recorded (i) the amount of each Loan made hereunder, the Type
thereof and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(c) The records of each Lender maintained pursuant to
subsection 4.9(a) and the entries made by the Administrative Agent in the
Register shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender to
maintain such records or the Administrative Agent to maintain the Register
or any such record, or any error in either thereof, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest)
the Loans made by such Lender in accordance with the terms of this
Agreement.
(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender, within thirty days after notification of such request by the
Administrative Agent to the Borrower, (i) a promissory note of the Borrower
evidencing the Revolving Credit Loans of such Lender, substantially in the
form of Exhibit G-1 with appropriate insertions (a "Revolving Credit Note"),
and (ii) a promissory note of the Borrower evidencing the Money Market Loans
of such Lender, substantially in the form of Exhibit G-2 with appropriate
insertions (a "Money Market Note").
4.10 Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Eurodollar Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Reference
Lenders that deposits in Dollars (in the applicable amounts) are not
being offered by the Reference Lenders in the relevant market for
such Interest Period, or
(b) in the case of Revolving Credit Loans, Lenders having
50% or more of the aggregate amount of the Commitments advise the
Administrative Agent that the Eurodollar Rate as determined by the
Administrative Agent will not adequately and fairly
<PAGE>
28
reflect the cost to such Lenders of funding their Eurodollar Loans
for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer
exist, the obligations of the Lenders to make, convert Loans into or
continue Loans as, as the case may be, Eurodollar Loans shall be suspended,
and any Loan that was to be converted into, or continued as, a Eurodollar
Loan for such Interest Period shall, instead, be continued as, or converted
into, a Base Rate Loan on the first day of such Interest Period. Unless the
Borrower notifies the Administrative Agent at least two Domestic Business
Days before the first day of any such Interest Period in respect of any
requested Eurodollar Loan or Money Market LIBOR Loan for which a Notice of
Revolving Credit Borrowing or Notice of Money Market Borrowing, as the case
may be, has previously been given that it elects not to borrow on such date,
(i) if such requested Loan is a Eurodollar Loan, such Loan shall instead be
made as a Base Rate Loan and (ii) if such requested Loan is a Money Market
LIBOR Loan, such Money Market LIBOR Loan shall bear interest for each day
from and including the first day to but excluding the last day of the
Interest Period applicable thereto at the rate applicable to Base Rate Loans
for such day.
4.11 Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
any Lender (or its Eurodollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank
or comparable agency shall make it unlawful or impossible for any Lender (or
its Eurodollar Lending Office) to make, maintain or fund its Eurodollar
Loans and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other
Lenders and the Borrower, whereupon until such Lender notifies the Borrower
and the Administrative Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Lender to make Eurodollar
Loans shall be suspended. Before giving any notice to the Administrative
Agent pursuant to this subsection, such Lender shall designate a different
Eurodollar Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such Lender shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Eurodollar
Loans to maturity and shall so specify in such notice, the Borrower shall
prepay in full the then outstanding principal amount of each such Eurodollar
Loan on the date required by law (as specified in such notice), together
with accrued interest thereon. Concurrently with prepaying each such
Eurodollar Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Lender (on which interest and principal shall be
payable contemporaneously with the related Eurodollar Loans of the other
Lenders), and such Lender shall make such a Base Rate Loan.
4.12 Increased Cost and Reduced Return. (a) If on or
after (i) the date hereof, in the case of any Revolving Credit Loan or any
obligation to make Revolving Credit Loans, or
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29
(ii) the date of the related Money Market Quote, in the case of any Money
Market Loan, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
any Lender (or its Applicable Lending office) with any request or directive
(whether or not having the force of law) of any such authority, central bank
or comparable agency shall impose, modify or deem applicable any reserve
(including, without limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding any such reserve
requirement in respect of Eurocurrency liabilities described in paragraph
(c) of this subsection 4.12), special deposit, insurance assessment or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (or its Applicable Lending Office) or on
the interbank eurodollar market any other condition affecting its Eurodollar
Loans or Money Market LIBOR Loans or its obligation to make such Loans and
the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any such Loan,
or to reduce the amount of any sum received or receivable by such Lender (or
its Applicable Lending Office) under this Agreement with respect thereto, by
an amount deemed by such Lender to be material, then, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender shall have determined that, after the
date hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Lender (or its
parent holding company) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (or its parent holding
company) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time
to time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender (or its parent holding
company) for such reduction.
(c) In addition to, and without duplication of, amounts
which may become payable from time to time pursuant to paragraphs (a) and
(b) of this subsection 4.12, the Borrower agrees to pay to each Lender which
requests compensation under this paragraph (c) by notice to the Borrower, on
the last day of each Interest Period with respect to any Eurodollar Loan
made by such Lender, at any time when such Lender shall be required to
maintain reserves against "Eurocurrency liabilities" under Regulation D of
the Board of Governors of the Federal Reserve System (or, at any time when
such Lender may be required by the Board of Governors of the Federal Reserve
System or by any other governmental authority, whether within the United
States or in another relevant jurisdiction, to maintain reserves against any
other category
<PAGE>
30
of liabilities which includes deposits by reference to which the Eurodollar
Rate is determined as provided in this Agreement or against any category of
extensions of credit or other assets of such Lender which includes any such
Eurodollar Loans), an additional amount (determined by such Lender's
calculation or, if an accurate calculation is impracticable, reasonable
estimate using such reasonable means of allocation as such Lender shall
determine) equal to the actual costs, if any, incurred by such Lender during
such Interest Period as a result of the applicability of the foregoing
reserves to such Eurodollar Loans.
(d) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Lender to compensation pursuant to
this subsection 4.12 and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender; provided that if a Lender shall not have so
notified the Borrower within 90 days of such event, such Lender may not seek
compensation for any period beginning prior to the date which is 90 days
prior to the date upon which the Borrower is notified of such event. A
certificate of any Lender claiming compensation under this subsection and
setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution
methods.
(e) The provisions of this subsection shall survive any
termination of this Agreement.
4.13 Taxes. (a) Any and all payments by the Borrower to
or for the account of any Lender or the Administrative Agent hereunder or
under any Note shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings (subject to paragraph (g) hereof), and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, taxes imposed on or measured by its net income,
and franchise, value added or similar taxes imposed on it, by a jurisdiction
on the basis of a present or former connection between such jurisdiction and
the Lender or Administrative Agent other than a connection arising solely
from such Administrative Agent or Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or any Note (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable
to additional sums payable under this subsection 4.13) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the
<PAGE>
31
Administrative Agent, at its address referred to in subsection 11.2, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes, or
charges or similar levies which arise from any payment made hereunder or
from the execution or delivery of, or otherwise with respect to, this
Agreement or any Note (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this subsection 4.13) paid by such
Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the
date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. If any Lender or the Administrative Agent receives
any written demand from any taxing authority asserting a liability for any
Taxes or Other Taxes for which such Lender or the Administrative Agent is
entitled to an indemnity under this paragraph (c), such Lender or Agent
shall promptly furnish the Borrower and the Administrative Agent with a copy
of such demand.
(d) If any Lender is a "foreign corporation, partnership
or trust" within the meaning of the Internal Revenue Code, on or prior to
the date of its execution and delivery of this Agreement in the case of each
Lender listed on the signature pages hereof and on or prior to the date on
which it becomes a Lender in the case of each other Lender, and from time to
time thereafter (but only so long as such Lender remains lawfully able to do
so), such Lender agrees with and in favor of the Administrative Agent and
the Borrower to deliver to the Administrative Agent and the Borrower: (i)
before the payment of any interest in the first calendar year and before the
payment of any interest in each third succeeding calendar year during which
interest may be paid under this Agreement, properly completed Internal
Revenue Service Forms 1001, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under
an income tax treaty to which the United States is a party which reduces the
rate of withholding tax on payments of interest; (ii) before the payment of
any interest is due in the first taxable year of such Lender and in each
succeeding taxable year of such Lender during which interest may be paid
under this Agreement, two properly completed and executed copies of Internal
Revenue Service Form 4224, or any successor form prescribed by the Internal
Revenue Service, certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or a business
in the United States; or (iii) such other form or forms as may be required
under the Internal Revenue Code or other laws of the United States as a
condition to exemption from, or reduction of, United States withholding tax.
Such Lender agrees to promptly notify the Administrative Agent and the
Borrower of any change in circumstances which would modify or render invalid
any claimed exemption or reduction. In addition, in the event any Lender
that claims exemption from, or reduction of, withholding tax under a United
States tax treaty by providing Internal Revenue Service Form 1001 sells,
assigns, grants a participation in, or otherwise transfers all or part of
the obligations of the Borrower to
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32
such Lender under this Agreement or any Note, such Lender agrees to notify
the Administrative Agent and the Borrower of the percentage amount in which
it is no longer the beneficial owner of obligations of the Borrower to such
Lender under this Agreement or any Note. To the extent of such percentage
amount, the Administrative Agent and the Borrower will treat such Lender's
Internal Revenue Service Form 1001 as no longer valid. In the event any
Lender that claims exemption from United States withholding tax by filing
Internal Revenue Service Form 4224 with the Administrative Agent and the
Borrower sells, assigns, grants a participation in, or otherwise transfers
all or part of the obligations of the Borrower to such Lender under this
Agreement or any Note, such Lender agrees to undertake sole responsibility
for complying with the withholding tax requirements imposed by Sections 1441
and 1442 of the Internal Revenue Code. If the Form 1001, Form 4224 or any
other appropriate forms required to be provided by a Lender at the time such
Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes. The Borrower shall not be
required to pay any amounts with respect to United States withholding taxes
under subsection (a) of this subsection 4.13 if the Lender shall have
delivered to the Borrower an Internal Revenue Service Form 1001 or 4224 and
such Lender was not actually entitled based on the law at the time of such
delivery to a reduced United States interest withholding tax.
(e) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form pursuant to
subsection 4.13(d) (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under subsection 4.13(a) with respect to Taxes imposed by
the United States. Should a Lender which is otherwise exempt from or
subject to a reduced rate of withholding tax become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) In the event that the Borrower is obligated to make an
indemnification payment pursuant to this subsection 4.13 to any Lender and
the Lender receives a refund of Taxes with respect to which the Borrower
made an indemnification payment, the Lender promptly shall remit the amount
of such refund to the Borrower.
(g) If any Lender is entitled to a reduction in the
applicable withholding tax, the Administrative Agent may withhold from any
interest payment to such Lender an amount equivalent to the applicable
withholding tax after taking into account such reduction. If the forms or
other documentation required by paragraph (d) are not delivered to the
Administrative Agent, then the Administrative Agent may withhold from any
interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding tax unless
the Borrower withholds the appropriate amount pursuant to subsection
4.13(a).
(h) If the Internal Revenue Service or any other
governmental authority of the United States or other jurisdiction asserts a
claim that the Administrative Agent or the Borrower
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33
did not properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify the Administrative Agent
or the Borrower of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Lender shall indemnify the Administrative Agent and the Borrower fully
for all amounts paid, directly or indirectly, by the Administrative Agent or
the Borrower as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
the Administrative Agent or the Borrower under this subsection, together
with all costs and expenses (including reasonable fees and disbursements of
counsel).
(i) Each Lender agrees that it will (i) take all
reasonable actions requested by the Borrower, including, without limitation,
changing the jurisdiction of the Lender's Applicable Lending Office, that
are, in the judgment of such Lender, not disadvantageous to such Lender to
maintain all complete or partial exemptions, if any, available to it from
withholding taxes (whether available by treaty or existing administrative
waiver), and (ii) to the extent reasonable and, in the judgment of such
Lender, not disadvantageous to it, otherwise cooperate with the Borrower to
minimize any amounts payable by the Borrower under this subsection 4.13.
(j) The provisions of this subsection shall survive any
termination of this Agreement. Each Lender will promptly notify the
Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender
to compensation pursuant to this subsection 4.13; provided that if a Lender
shall not have so notified the Borrower within 90 days of such event of
which it has knowledge, such Lender may not seek compensation for any period
beginning prior to the date which is 90 days prior to the date upon which
the Borrower is notified of such event.
4.14 Base Rate Loans Substituted for Affected Eurodollar
Loans. If any Lender is an Affected Lender and the Borrower shall, by at
least five Eurodollar Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this subsection
4.14 shall apply to such Lender, then, unless and until such Lender notifies
the Borrower that the circumstances that caused such Lender to be an
Affected Lender no longer apply:
(a) all Loans which would otherwise be made by such Lender
as Eurodollar Loans shall be made instead as Base Rate Loans (on
which interest and principal shall be payable contemporaneously with
the related Eurodollar Loans of the other Lenders), and
(b) after each of its Eurodollar Loans has been repaid,
all payments of principal which would otherwise be applied to repay
such Eurodollar Loans shall be applied to repay its Base Rate Loans
instead.
4.15 Pro Rata Treatment and Payments. (a) Each borrowing
by the Borrower in respect of Revolving Credit Loans (subject to the
provisions of subsection 2.4(d)), each payment by the Borrower on account of
any facility fee hereunder and any reduction of the Commitments
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34
of the Lenders shall be made pro rata according to the respective Commitment
Percentages of the Lenders. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made
pro rata according to the respective principal amounts of, or interest on,
the Loans, as the case may be, then due and owing to the Lenders. All
payments (including prepayments) to be made by the Borrower hereunder or
under any Note, whether on account of principal, interest, fees or
otherwise, shall be made without deduction, set-off or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date
thereof to the Administrative Agent, for the account of the Lenders, at the
Administrative Agent's office specified in subsection 11.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as
received. Whenever any payment of principal of, or interest on, the Base
Rate Loans or of fees shall be due on a day that is not a Domestic Business
Day, the date for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal of, or interest on,
the Eurodollar Loans or Money Market LIBOR Loans shall be due on a day that
is not a Eurodollar Business Day, the date for payment thereof shall be
extended to the next succeeding Eurodollar Business Day unless such
Eurodollar Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Eurodollar Business
Day. Whenever any payment of principal of, or interest on, the Money Market
Absolute Rate Loans shall be due on a day that is not a Domestic Business
Day, the date for payment thereof shall be extended to the next succeeding
Domestic Business Day. If the date for any payment of principal is extended
by operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to
the Lenders hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such payment
in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender.
If and to the extent that the Borrower shall not have so made such payment,
each Lender shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date
such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate.
(c) Unless the Administrative Agent has received notice
from a Lender prior to a Borrowing Date that such Lender will not make
available to the Administrative Agent the amount that would constitute its
share of the Loans to be made on such Borrowing Date, the Administrative
Agent may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the
required time on such Borrowing Date, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Rate for the period until such
Lender makes such amount immediately available to the Administrative Agent.
A certificate of the Administrative Agent
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35
submitted to any Lender with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. In addition
to, and not in limitation of, the foregoing, if such Lender's share of such
Loans is not made available to the Administrative Agent by such Lender within
three Business Days of such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per
annum equal to the Federal Funds Rate plus the Applicable Margin applicable to
Eurodollar Loans, on demand, from the Borrower.
4.16 Funding Losses. If the Borrower makes any payment of
principal with respect to any Eurodollar Loan or Money Market Loan on any
day other than the last day of an Interest Period applicable thereto, or if
the Borrower fails to borrow, prepay, convert or continue any Eurodollar
Loan or Money Market Loan after giving a Notice of Revolving Credit
Borrowing, Notice of Money Market Borrowing or notice of prepayment,
continuation or conversion, as the case may be, the Borrower shall reimburse
each Lender within 15 days after demand for any resulting loss or expense
incurred by it (or by an existing or prospective Participant in the related
Loan), including (without limitation) any loss incurred in liquidating or
employing deposits from third parties, but excluding loss of margin for the
period after any such payment or failure to borrow or prepay, provided that
such Lender shall have delivered to the Borrower a certificate as to the
amount of such loss or expense, which certificate shall be conclusive in the
absence of manifest error. The provisions of this subsection shall survive
any termination of this Agreement.
4.17 Replacement of Affected Lender. At any time any
Lender is an Affected Lender, the Borrower may replace such Affected Lender
as a party to this Agreement with one or more other bank(s) or financial
institution(s) reasonably satisfactory to the Administrative Agent, such
bank(s) or financial institution(s) to have a Commitment or Commitments, as
the case may be, in an aggregate amount equal to the Commitment of such
Affected Lender being replaced thereby, and upon notice from the Borrower
such Affected Lender shall assign, without recourse or warranty, its
Commitment, its Revolving Credit Loans, and all of its other rights and
obligations hereunder to such replacement bank(s) or other financial
institution(s) for a purchase price equal to the sum of the principal amount
of the Loans so assigned, all accrued and unpaid interest thereon, its
ratable share of all accrued and unpaid fees, any amounts payable under
subsection 4.16 as a result of such Lender receiving payment of any
Eurodollar Loan prior to the end of an Interest Period therefor and all
other obligations owed to such Affected Lender hereunder; provided that no
Affected Lender shall be required to assign any Money Market Loan.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants
to each Agent and each Lender that:
5.1 Financial Condition. (a) The unaudited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of June
30, 1996 and the related unaudited
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36
consolidated statements of income and cash flows for the six months then
ended, copies of which have been delivered to each of the Lenders, fairly
present, in conformity with GAAP applied on a basis consistent with the
financial statements referred to in paragraph (b) of this subsection, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations
and cash flows for such six-month period.
(b) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of December 31, 1995 and the related audited
consolidated statements of income and cash flows for the fiscal year then
ended, reported on by Coopers & Lybrand LLP, copies of which have been
delivered to each of the Lenders, fairly present, in conformity with GAAP,
the consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations
and cash flows for the fiscal year then ended.
5.2 No Change. Since December 31, 1995, there has been no
material adverse change in the financial position, results of operations or
business of the Borrower and its Consolidated Subsidiaries, considered as a
whole.
5.3 Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted, except in any case where the failure
to be in good standing or to have such powers, licenses, authorizations,
consents or approvals would not, in the aggregate, materially adversely
affect the financial position, results of operations or business of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
5.4 Corporate and Governmental Authorization; Non
Contravention. The execution, delivery and performance by the Borrower of
this Agreement and any Note are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency or official
and do not contravene, or constitute a default under, any provision of
applicable law, rule or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or result in the
creation or imposition of any Lien on any asset of the Borrower or any
Subsidiary except for any contravention of or default under or Lien arising
under any law, rule or regulation or any agreement, judgment, order, decree
or other instrument (other than agreements or instruments constituting or
evidencing Debt) not material to the business of the Borrower and its
Consolidated Subsidiaries, considered as a whole, which contravention,
default or Lien would not (a) materially adversely affect the financial
position, results of operations or business of the Borrower and its
Consolidated Subsidiaries, considered as a whole or (b) adversely affect in
any substantive way the rights and remedies of the Agents and the Lenders
hereunder.
5.5 Binding Effect. This Agreement constitutes, and any
Note when executed and delivered will constitute, a valid and binding
agreement of the Borrower except as the enforceability thereof may be
limited by (a) bankruptcy, insolvency or similar laws affecting
<PAGE>
37
creditors' rights generally and (b) general equitable principles (whether
enforceability is considered in a proceeding in equity or at law).
5.6 Litigation. Except as disclosed in the Form 10-K of
the Borrower for the fiscal year ended December 31, 1995, the Form 10-Q of
the Borrower for the period ending March 31, 1996, the Form 10-Q of the
Borrower for the period ending June 30, 1996, or in Schedule III, there is
no action, suit or proceeding pending against, or to the knowledge of the
Borrower threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency
or official (a) in which there is a reasonable possibility of an adverse
decision that could materially adversely affect the business, financial
position or results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or (b) that in any manner draws into
question the validity of this Agreement or any Note.
5.7 Taxes. United States Federal income tax returns of
Santa Fe Pacific Corporation and its Material Subsidiaries have been
examined and closed or the statutes of limitations have expired for all
fiscal years through the year ended December 31, 1980. United States
Federal income tax returns of Burlington Northern Inc. and its Material
Subsidiaries have been examined and closed or the statutes of limitations
have expired for all fiscal years through the year ended December 31, 1985.
The Borrower and its Material Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns which are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Borrower or any
Material Subsidiary except for any taxes being contested in good faith by
appropriate proceedings and as to which accruals have been provided in
accordance with GAAP. The accruals on the books of the Borrower and its
Material Subsidiaries in respect of taxes or other governmental charges are,
in the opinion of the Borrower, adequate.
5.8 Federal Regulations. No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation G or
Regulation U in violation of such Regulations.
5.9 ERISA. Each member of the ERISA Group has fulfilled
its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA
Group has (a) sought a waiver of the minimum funding standard under Section
412 of the Internal Revenue Code in respect of any Plan, (b) failed to make
any contribution or payment to any Plan or Multiemployer Plan, or made any
amendment to any Plan, that has resulted or could result in the imposition
of a Lien or the posting of a bond or other security under ERISA or the
Internal Revenue Code or (c) incurred any liability under Title IV of ERISA
other than for regular contributions, which are not delinquent, and other
than a liability to the PBGC for premiums under Section 4007 of ERISA or a
liability to any Multiemployer Plan not in excess of $50,000,000.
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38
5.10 Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
5.11 Subsidiaries. Each of the Borrower's corporate
Material Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation,
and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted except in any case where the failure to be in good standing or
to have such powers, licenses, authorizations, consents and approvals would
not, in the aggregate (a) materially adversely affect the financial
position, results of operations or business of the Borrower and its
Consolidated Subsidiaries, considered as a whole, or (b) adversely affect in
any substantive way the rights and remedies of the Agents and the Lenders
hereunder or under any Note.
5.12 Environmental Matters. Except as disclosed in the
Form 10-K of the Borrower for the fiscal year ended December 31, 1995, the
Form 10-Q of the Borrower for the period ending March 31, 1996, the Form
10-Q of the Borrower for the period ending June 30, 1996, or in Schedule
III, the Borrower and its Subsidiaries are in compliance in all material
respects with all Environmental Laws, and no Hazardous Substances have been
released upon any properties owned, leased or operated by the Borrower or
any of its Subsidiaries, except, in each case, to an extent that would not
be reasonably anticipated to have a material adverse effect on the business,
financial position or results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
5.13 Full Disclosure. The material furnished to the
Agents and the Lenders by or on behalf of the Borrower in connection with
the negotiation, execution and delivery of this Agreement, taken as a whole,
does not contain as of the date hereof, did not contain at the time so
furnished and will not contain on the date of the initial borrowing of
Loans, any untrue statement of a material fact and does not as of the date
hereof omit, did not omit at the time so furnished and will not omit on the
date of the initial borrowing of Loans, to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
5.14 Limitation on Subsidiary Restrictions. Neither the
Borrower nor any Material Subsidiary has entered into any agreement with any
Person prior to the date hereof that will continue to be in effect after the
Closing Date which prohibits or limits the ability of such Material
Subsidiary to pay dividends or make other distributions to the Borrower.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Closing Date. The Closing Date will
occur on the date of satisfaction of the following conditions precedent:
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39
(a) Revolving Credit Agreement. The Documentation Agent
shall have received this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for each
Lender.
(b) Related Agreements. The Documentation Agent shall
have received, with a copy for each Lender, true and correct copies,
certified as to authenticity by the Borrower, of such other
documents or instruments as may be reasonably requested by the
Documentation Agent, including, without limitation, a copy of any
material debt instrument, material security agreement or other
material contract to which the Borrower or its Subsidiaries may be a
party.
(c) Corporate Proceedings of the Borrower. The
Documentation Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance
satisfactory to the Documentation Agent, of the Board of Directors
of the Borrower authorizing (i) the execution, delivery and
performance of this Agreement and any Note and (ii) the borrowings
contemplated hereunder, certified by the secretary or an assistant
secretary of the Borrower as of the Closing Date, which certificate
shall be in form and substance satisfactory to the Documentation
Agent and shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded.
(d) Borrower Incumbency Certificate. The Documentation
Agent shall have received, with a counterpart for each Lender, a
certificate of the Borrower, dated the Closing Date, as to the
incumbency and signature of the officers of the Borrower executing
this Agreement and documents executed by the Borrower pursuant
hereto, satisfactory in form and substance to the Documentation
Agent, executed by the vice-president - finance or the chief
financial officer and the secretary or an assistant secretary of the
Borrower.
(e) Corporate Documents. The Documentation Agent shall
have received, with a counterpart for each Lender, true and complete
copies of the certificate of incorporation and by-laws of the
Borrower, certified as of the Closing Date as complete and correct
copies thereof by the secretary or an assistant secretary of the
Borrower.
(f) Fees. Each Agent and each Co-Arranger shall have
received the fees referred to in subsection 4.1 to be received on or
prior to the Closing Date.
(g) Legal Opinions. The Documentation Agent shall have
received, with a counterpart for each Lender, the following executed
legal opinions:
(i) the executed legal opinion of Mayer, Brown
& Platt, counsel to the Borrower, substantially in the form
of Exhibit E-1;
(ii) the executed legal opinion of the general
counsel of the Borrower, substantially in the form of
Exhibit E-2; and
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40
(iii) the executed legal opinion of Simpson
Thacher & Bartlett, special counsel to the Documentation
Agent and the Administrative Agent, substantially in the
form of Exhibit E-3.
Each such legal opinion shall be dated the Closing Date and shall
cover such other matters incident to the transactions contemplated
by this Agreement as either Agent may reasonably require.
(h) Representations and Warranties. Each of the
representations and warranties made by the Borrower in this
Agreement shall be true and correct in all material respects on and
as of the Closing Date as if made on and as of the Closing Date.
(i) No Default. No Default or Event of Default shall have
occurred and be continuing on the Closing Date.
(j) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters
in connection with the transactions contemplated by this Agreement
shall be satisfactory in form and substance to the Agents, and the
Agents and the Lenders shall have received such other documents and
legal opinions in respect of any aspect or consequence of the
transactions contemplated hereby or thereby as the Agents shall
reasonably request.
6.2 Conditions to Each Loan. The agreement of each Lender
to make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in this
Agreement shall be true and correct in all material respects on and
as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to
the Loans requested to be made on such date.
(c) Notice of Borrowing. The Administrative Agent shall
have received by the time required pursuant to subsection 2.2 or
3.6, as the case may be, the Notice of Revolving Credit Borrowing or
Notice of Money Market Borrowing, as the case may be, in respect of
such Loans.
Each borrowing by the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date thereof that the conditions
contained in paragraphs (a), (b) and (c) of this subsection have been
satisfied.
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41
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the
Commitments remains in effect or any amount is owing to any Lender or Agent
hereunder or under any Note:
7.1 Information. The Borrower will deliver to the
Administrative Agent in sufficient number for all of the Lenders (and the
Administrative Agent shall promptly deliver to each Lender upon receipt):
(a) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such fiscal year and the related consolidated
statements of income, stockholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by independent
public accountants of nationally recognized standing;
(b) within 120 days after the end of each fiscal year of
the Borrower, a consolidating balance sheet in reasonable detail of
the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidating statement of income for
such fiscal year, all certified by the chief financial officer,
chief accounting officer or vice president-finance of the Borrower
as having been used in connection with the preparation of the
financial statements referred to in paragraph (a) of this
subsection;
(c) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such quarter, the
related consolidated statement of income for such quarter and for
the portion of the Borrower's fiscal year ended at the end of such
quarter, setting forth in comparative form such statement of income
for the corresponding quarter and the corresponding portion of the
Borrower's previous fiscal year, and the related consolidated
statement of cash flow for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in comparative form
such statement of cash flow for the corresponding portion of the
Borrower's previous fiscal year, all certified as to fairness of
presentation, generally accepted accounting principles and
consistency (except for any changes concurred with by the Borrower's
independent public accountants) by the chief financial officer,
chief accounting officer or vice president-finance of the Borrower;
(d) simultaneously with the delivery of each set of
financial statements referred to in paragraphs (a) and (c) of this
subsection, a certificate of the chief financial officer, chief
accounting officer or vice president-finance of the Borrower (A)
setting forth in reasonable detail the calculations required to
establish whether the Borrower was in compliance with the
requirements of subsections 8.1, and 8.2 on the date of such
financial statements, (B) stating whether there exists on the date
of such certificate any Default
<PAGE>
42
and, if any Default then exists, setting forth the details thereof
and the action that the Borrower is taking or proposes to take with
respect thereto and (C) stating whether, to the best of his
knowledge, after due inquiry, since the date of the most recent
previous delivery of financial statements pursuant to paragraph (a)
or (c) of this subsection, there has been any material adverse
change in the business, financial position or results of operations
of the Borrower and its Consolidated Subsidiaries, considered as a
whole, and, if so, the nature of such material adverse change;
(e) simultaneously with the delivery of each set of
financial statements referred to in paragraph (a) of this
subsection, a statement of the firm of independent public
accountants that reported on such statements (i) stating that their
audit examination has included a review of the terms of this
Agreement as they relate to financial or accounting matters
(including without limitation the requirements of subsections 8.1
and 8.2) and (ii) stating whether anything has come to their
attention to cause them to believe that any Default existed on the
date of such statements;
(f) within five days after any officer of the Borrower
obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer, chief
accounting officer or vice president-finance of the Borrower setting
forth the details thereof and the action that the Borrower is taking
or proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements,
reports and proxy statements so mailed;
(h) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or other reports that the Borrower shall have filed with
the Securities and Exchange Commission (it being understood that if
such reports and the financial statements, reports and proxy
statements referred to in paragraph (g) of this subsection are
provided within the time period prescribed by, and contain the
financial statements, opinions and certifications required by,
paragraphs (a) and (c) of this subsection, the requirements of
supplying such financial statements, opinions and certifications
shall be deemed to have been met);
(i) if and when any member of the ERISA Group (i) gives or
is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan that
might constitute grounds for a termination of such Plan under Title
IV of ERISA, or knows that the plan administrator of any Plan has
given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in
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43
respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code, a copy of
such application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any
Plan or makes any amendment to any Plan that has resulted or could
result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer, the vice
president-finance or the chief accounting officer of the Borrower
setting forth details as to such occurrence and action, if any, that
the Borrower or applicable member of the ERISA Group is required or
proposes to take;
(j) as soon as reasonably practicable after the chairman,
president, secretary, treasurer, chief financial officer, vice
president-finance, chief legal officer or any vice president of the
Borrower obtains knowledge of the commencement of, or a material
threat of the commencement of, an action, suit, arbitration or other
proceeding against the Borrower or any Subsidiary before any court
or arbitrator or any governmental body, agency, arbitrator or other
official in which there is a reasonable possibility of an adverse
decision that could materially adversely affect the business,
financial position or results of operation of the Borrower and its
Consolidated Subsidiaries, considered as a whole, or that in any
manner draws into question the validity of this Agreement,
information as to the nature of such pending or threatened action,
suit or proceeding;
(k) promptly after the chairman, president, secretary,
treasurer, chief financial officer, vice president-finance, chief
legal officer or any vice president of the Borrower obtains
knowledge of a Change of Control, information as to the details
thereof; and
(l) from time to time such additional information
regarding the financial position, results of operations or business
of the Borrower or any of its Subsidiaries as the Administrative
Agent, at the reasonable request of any Lender, may request.
7.2 Maintenance of Properties; Insurance. (a) Except as
otherwise permitted by subsection 8.4, the Borrower will keep, and will
cause each Subsidiary to keep, all material property useful and necessary in
its business in good working order and condition, ordinary wear and tear
excepted, to the extent required by sound business practice.
(b) The Borrower will insure, and will cause each
Subsidiary to insure, its assets and businesses to such extent as is
customary for companies engaged in the same or similar businesses in similar
locations.
7.3 Conduct of Business and Maintenance of Existence.
Except as permitted by subsection 8.4, the Borrower will continue, and will
cause each Subsidiary to continue, to engage in business of the same general
type as now conducted by the Borrower and such Subsidiary, and will
preserve, renew and keep in full force and effect, and will cause each
Subsidiary to preserve,
<PAGE>
44
renew and keep in full force and effect, its corporate existence and its
rights, privileges and franchises necessary or desirable in the normal
conduct of business; provided that nothing in this subsection shall prohibit
(a) any merger, consolidation or Disposition permitted by subsection 8.4, or
(b) the termination of the corporate existence of any Subsidiary (other than
Burlington Northern Railroad or Santa Fe Railroad or, in the event of the
merger or consolidation of Burlington Northern Railroad and Santa Fe
Railroad, the surviving corporation of such merger or consolidation) if the
Borrower in good faith determines that such termination is in the best
interest of the Borrower and is not materially disadvantageous to the
Lenders.
7.4 Compliance with Laws. The Borrower will comply, and
will cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations and requirements of
governmental authorities (including, without limitation, Environmental Laws
and ERISA and the rules and regulations thereunder) except (a) where
necessity of compliance therewith is contested in good faith by appropriate
proceedings or (b) where the failure so to comply would not have a material
adverse effect on the business, financial position or results of operations
of the Borrower and its Consolidated Subsidiaries, considered as a whole.
7.5 Use of Proceeds. (a) The Borrower will use the
proceeds of the Loans for working capital and other general corporate
purposes.
(b) None of the proceeds of any Loan will be used,
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any "margin stock" within the meaning of
Regulation G or Regulation U in violation of such Regulations.
7.6 Maintenance of Ownership of Railroads. The Borrower
will at all times own, directly or through one or more Wholly-Owned
Subsidiaries that are Material Subsidiaries, all outstanding capital stock
of Burlington Northern Railroad and Santa Fe Railroad (or, in the event of
the merger or consolidation of Burlington Northern Railroad and Santa Fe
Railroad, the surviving corporation of such merger or consolidation).
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the
Commitments remains in effect or any amount is owing to any Lender or Agent
hereunder or under any Note:
8.1 Financial Condition Covenants.
(a) Maintenance of Consolidated Tangible Net Worth. The
Borrower will not permit Consolidated Tangible Net Worth at any time
to be less than $4,400,000,000.
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45
(b) Limitation on Consolidated Total Debt. The Borrower
will not permit Consolidated Total Debt at any time to exceed 55% of
Consolidated Total Capital at such time.
8.2 Limitation on Debt. (a) The Borrower will not permit
any Subsidiary to create, incur, assume or suffer to exist any Debt,
except:
(i) Debt of any Subsidiary to the Borrower or to
another Wholly-Owned Subsidiary;
(ii) Debt of any Subsidiary used for the purposes
specified in, and secured by any Lien permitted by (or, if such
Subsidiary is not a Material Subsidiary, any Lien which would be
permitted if it were a Material Subsidiary by), subsection 8.3(b),
(c), (d), (e) or (j), and any refinancing of such Debt in a
principal amount not exceeding the fair market value (as determined
in good faith by the Borrower), on the date of such refinancing, of
the assets subject to such Lien;
(iii) Debt of any Subsidiary outstanding on the date
hereof and listed on Schedule II, and any Debt of any Subsidiary the
proceeds of which are used to refinance such outstanding Debt of
such Subsidiary, provided that the principal amount thereof is not
increased;
(iv) Receivables Program Obligations, to the extent that
the Accounts Receivable Financing Amount thereof does not exceed
$750,000,000; and
(v) additional Debt of any Subsidiary in an aggregate
principal amount for all Subsidiaries at any time outstanding not
exceeding 5% of Consolidated Tangible Net Worth.
(b) The Borrower will not permit any Subsidiary or Special
Purpose Vehicle to incur any Receivables Program Obligations (including as
permitted by subsection 8.2(a)(v)) to the extent that the Accounts
Receivable Financing Amount thereof exceeds $750,000,000.
8.3 Limitation on Liens. Neither the Borrower nor any
Material Subsidiary will create or have outstanding any Lien on any asset
now owned or hereafter acquired by it, except:
(a) Liens existing on the date hereof securing Debt
outstanding on the date hereof;
(b) any Lien existing on any asset of any corporation at
the time such corporation becomes a Material Subsidiary and not
created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring such asset, provided that such Lien
<PAGE>
46
attaches to such asset, and only to such asset, concurrently with or
within 360 days after the acquisition (or completion of development)
thereof;
(d) any Lien on any asset of any corporation existing at
the time such corporation is merged into or consolidated with the
Borrower or a Material Subsidiary and not created in contemplation
of such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Material Subsidiary and not
created in contemplation of such acquisition;
(f) Liens created on railroad property pursuant to
after-acquired property clauses of mortgages on such railroad
property so long as such mortgage was in existence on the date
hereof;
(g) Liens arising pursuant to judgments, attachments,
distraint or similar legal processes in an amount not exceeding
$250,000,000 which have been bonded or stayed pending appeal or
other contest;
(h) materialmen's, vendor's, workmen's, operator's,
mechanics', carrier's and like Liens imposed by law, incurred in
good faith in the ordinary course of business and securing
obligations that are not yet due or that are being contested in good
faith by appropriate proceedings;
(i) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by
any of the foregoing clauses of this Section, provided that such
Debt is not increased beyond the principal amount thereof
outstanding on the date of such refinancing, extension, renewal or
refinancing, and is not secured by any additional assets;
(j) any Lien on railroad locomotives, auto racks or
rolling stock securing Debt incurred for the purpose of acquiring or
refurbishing such property; provided, that such Lien attaches to
such property and only to such property within 360 days after the
acquisition or the completion of refurbishment of such property;
(k) any Lien on Receivables Program Assets securing
Receivables Program Obligations; and
(l) Liens not otherwise permitted by the foregoing clauses
of this subsection securing Debt in an aggregate principal amount at
any time outstanding not exceeding 5% of Consolidated Tangible Net
Worth.
8.4 Consolidations, Mergers and Sale of Assets. The
Borrower will not, and will not permit any Material Subsidiary to,
consolidate with or merge into any other Person or Dispose of all or
substantially all of its assets, property or business, in any single
transaction or
<PAGE>
47
series of related transactions; provided, that (a) any Material Subsidiary
may merge or consolidate with, or Dispose of all or substantially all of its
assets, property or business to, any other Subsidiary or may merge or
consolidate with, or Dispose of all or substantially all of its assets,
property or business to, the Borrower (if the Borrower shall be the
surviving corporation in any such merger or consolidation), (b) subject to
subsection 7.6, any Material Subsidiary may consolidate with or merge into
any other Person, or any Material Subsidiary (other than Burlington Northern
Railroad or Santa Fe Railroad) may Dispose of all or substantially all of
its assets, property or business in any single transaction or any series of
related transactions, on terms and conditions approved by the Board of
Directors of the Borrower, and (c) subject to subsection 7.6, the Borrower
may merge or consolidate with any other corporation if (i) (A) the surviving
corporation shall be the Borrower or (B) the surviving corporation, if not
the Borrower, shall be a corporation organized and existing under the laws
of the United States or any state thereof or the District of Columbia and
shall expressly assume by a written assignment executed and delivered to the
Administrative Agent, all of the rights and obligations of the Borrower
under this Agreement (and pursuant to which such surviving corporation shall
become the "Borrower" under this Agreement), and (ii) after giving effect to
such merger or consolidation no Default shall have occurred and be
continuing.
8.5 Limitation on Transactions with Affiliates. The
Borrower will not, and will not permit any Subsidiary to, directly or
indirectly, pay any funds to or for the account of, make any investment
(whether by acquisition of stock or indebtedness, by loan, advance, transfer
of property, guarantee or other agreement to pay, purchase or service,
directly or indirectly, any Debt, or otherwise) in, lease, sell, transfer or
otherwise dispose of any assets, tangible or intangible, to, or participate
in, or effect any transaction in connection with any joint enterprise or
other joint arrangement with, any Affiliate other than in the ordinary
course of business and on terms and conditions at least as favorable to the
Borrower or such Subsidiary as the terms and conditions which would apply in
a similar transaction with a Person not an Affiliate.
8.6 Limitation on Subsidiary Restrictions. The Borrower
will not permit any Material Subsidiary to enter into any agreement after
the date hereof with any Person which prohibits or limits the ability of
such Material Subsidiary to pay dividends or make other distributions to the
Borrower, or amend, modify or supplement any existing agreement or
instrument in any manner that has the effect of so prohibiting or limiting
such ability.
SECTION 9. EVENTS OF DEFAULT
9.1 Events of Default. If any of the following events
shall occur and be continuing:
(a) the Borrower shall fail to pay when due any principal
of any Loan;
(b) the Borrower shall fail to pay interest on any Loan or
any fees or other amounts payable hereunder within five days after
the same becomes due and payable;
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48
(c) the Borrower shall fail to observe or perform any
covenant contained in subsection 7.1(f), 7.6, 8.1, 8.4, 8.6, or at
any time that Rating VI is in effect, subsection 8.2, 8.3 or 8.5;
(d) (i) the Borrower shall fail to observe or perform any
covenant contained in subsection 8.2, 8.3 or 8.5 at any time that a
Rating other than Rating VI is in effect and such default continues
unremedied for a period of 30 days after the occurrence thereof or
(ii) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by
clause (a), (b), (c) or (d)(i) above) for 30 days after written
notice thereof has been given to the Borrower by the Administrative
Agent at the request of any Lender;
(e) any representation, warranty, certification or
statement made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect in any
material respect when made (or deemed made);
(f) any payment in respect of Specified Obligations of the
Borrower and its Material Subsidiaries (except for Debt under this
Agreement) having a principal amount in excess of $75,000,000 in the
aggregate shall not be paid when due or within any applicable grace
period;
(g) any event or condition shall occur that results in the
acceleration of the maturity of any Specified Obligations of the
Borrower and its Material Subsidiaries (except for Debt under this
Agreement) and/or cancellation of commitments under Committed Credit
Facilities in a principal amount in excess of $75,000,000 in the
aggregate for all such Specified Obligations and Committed Credit
Facilities or enables the holder of such Specified Obligation and/or
the lenders under any such Committed Credit Facility or any Person
acting on behalf of such holders and/or lenders to accelerate the
maturity of such Specified Obligation and/or to terminate the
commitments to extend credit under such Committed Credit Facility,
in each case in an aggregate amount in excess of $75,000,000 for all
such Specified Obligations and Committed Credit Facilities;
(h) the Borrower or any Material Subsidiary shall commence
a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the
foregoing;
<PAGE>
49
(i) an involuntary case or other proceeding shall be
commenced against the Borrower or any Material Subsidiary seeking
liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of 60 days; or an order for relief shall be entered against the
Borrower or any Material Subsidiary under the federal bankruptcy
laws as now or hereafter in effect;
(j) any member of the ERISA Group at the time in question
shall fail to pay when due an amount or amounts aggregating in
excess of $10,000,000 which it shall have become liable to pay under
Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA
Group at the time in question, any plan administrator or any
combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer
Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $50,000,000; or
(k) (i) one or more judgments or orders for the payment of
money in an aggregate amount in excess of $100,000,000, other than
the Crow Judgment, shall be rendered against the Borrower or any
Material Subsidiary and such judgments or orders shall continue
unsatisfied and unstayed for a period of 30 days; or (ii) in the
case of the Crow Judgment, (A) Burlington Northern Railroad shall
cease diligently and actively to pursue one or more appeals or other
applicable legal proceedings to overturn or challenge the Crow
Judgment and defend against enforcement thereof, in each case in any
court in the United States having jurisdiction to consider such
appeals or proceedings; (B) any enforcement, injunction, seizure,
attachment or other action affecting the assets or operations of
Burlington Northern Railroad shall occur in respect of the Crow
Judgment that, individually or in the aggregate, has a material
adverse effect on the financial position, results of operations or
business of the Borrower and its Consolidated Subsidiaries,
considered as a whole; (C) any state or Federal court shall render a
judgment, order or decision having the effect of allowing
enforcement of the Crow Judgment, and such judgment, order or
decision shall continue unsatisfied and unstayed for a period of 30
days; or (D) (x) the amount of the award thereunder (excluding
post-judgment interest) is increased to an amount greater than
$250,000,000, (y) the amount of such award not covered by insurance
exceeds $100,000,000 and (z) the judgment, order or decision
effecting such increase shall continue unsatisfied and unstayed for
a period of 30 days;
<PAGE>
50
then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (h) or (i) of this subsection 9.1 with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and any Note shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare
the Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and any Note to be due and payable forthwith, whereupon the
same shall immediately become due and payable. Except as expressly provided
above in this subsection 9.1, presentment, demand, protest and all other
notices of any kind are hereby expressly waived by the Borrower.
9.2 Notice of Default. The Administrative Agent shall
give notice to the Borrower under subsection 9.1(d)(ii) promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
SECTION 10. THE AGENTS
10.1 Appointment and Authorization. Subject to the
limitations set forth in subsection 10.9, each Lender irrevocably appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and any Note as are delegated to
such Agent by the terms hereof or thereof, together with all such powers as
are reasonably incidental thereto.
10.2 Agents and Affiliates. Each Agent shall have the
same rights and powers under this Agreement and any Note held by it as any
other