SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
Tender Offer Statement Pursuant to Section 14(d)(l) of
the Securities Exchange Act of 1934
(Amendment No. 5)
and
SCHEDULE 13D
under the Securities Exchange Act of 1934
(Amendment No. 5)
Southern Pacific Rail Corporation
(Name of Subject Company)
Union Pacific Corporation
UP Acquisition Corporation
Union Pacific Railroad Company
(Bidders)
Common Stock, Par Value $.001 Per Share
(Title of class of securities)
843584 10 3
(CUSIP number of class of securities)
Richard J. Ressler, Esq.
Assistant General Counsel
Union Pacific Corporation
Martin Tower, Eighth and Eaton Avenues
Bethlehem, Pennsylvania 18018
(610) 861-3200
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of bidders)
with a copy to:
Paul T. Schnell, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
Telephone: (212) 735-3000
This Amendment No. 5 amends and supplements the
Tender Offer Statement on Schedule 14D-1 relating to the
tender offer by UP Acquisition Corporation ("Purchaser"),
a Delaware corporation and a wholly owned subsidiary of
Union Pacific Railroad Company, a Utah corporation
("UPRR"), and an indirect wholly owned subsidiary of
Union Pacific Corporation, a Utah corporation ("Parent"),
to purchase up to 39,034,471 shares of Common Stock, par
value $.001 per share (the " Shares"), of Southern
Pacific Rail Corporation, a Delaware corporation (the
"Company").
Unless otherwise indicated herein, each capitalized
term used and not defined herein shall have the meaning
assigned to such term in the Schedule 14D-1 or in the
Offer to Purchase referred to therein.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in Item 4 of the Schedule
14D-1 is hereby amended and supplemented by the following
information:
In addition to obtaining funds to finance the
purchase of Shares pursuant to the Offer from their
available cash and working capital, and either through
the issuance of Debt Securities or pursuant to an
existing $1.4 billion credit facility with various
commercial banks (the "$1.4 Billion Facility"), as
previously described in this item, Parent and UPRR may
obtain all or a portion of the necessary funds pursuant
to an existing $1.1 billion credit facility with various
commercial banks (the "$1.1 Billion Facility") or
pursuant to an existing $1.2 billion credit facility with
various commercial banks (the "$1.2 Billion Facility"
and, together with the $1.1 Billion Facility and the $1.4
Billion Facility, the "Facilities").
On April 11, 1995, Parent entered into the $1.1
Billion Facility among Parent, Chemical Bank and Citicorp
Securities, Inc., as Co-Arrangers, Chemical Securities,
Inc., as Syndication Agent, Citibank, N.A., as
Documentation Agent, Chemical Bank, as Administrative
Agent, and the other banks named therein, which provides
Parent with a revolving credit facility in the amount of
$1.1 billion which will mature on April 11, 2000. In
addition, on April 11, 1995, Parent entered into a
separately documented credit agreement, the $1.2 Billion
Facility, among Parent, Chemical Bank and Citicorp
Securities, Inc., as Co-Arrangers, Chemical Securities,
Inc., as Syndication Agent, Citibank, N.A., as
Documentation Agent, Chemical Bank, as Administrative
Agent, and the other banks named therein, which provides
Parent with a revolving credit facility in the amount of
$1.2 billion which will mature on April 10, 1996.
The interest on the drawings under the $1.1 Billion
Facility is expected to be in the range of .150% to .500%
above LIBOR per annum, and would be in addition to a
Facility fee ranging from .100% to .250% per annum, in
each case based on the credit ratings applicable to
Parent's long-term indebtedness. The interin each
caseest under the $1.2 Billion Facility will be .190%
above LIBOR per annum and the $1.2 Billion Facility would
be subject to a Facility fee of .060% per annum. Each
Facility fee is payable on the entire amount of the $1.1
Billion Facility or $1.2 Billion Facility, as the case
may be, whether used or unused.
The proceeds of the Facilities are available for
general corporate purposes of Parent and are expected to
be available for financing the Offer.
It is anticipated that the indebtedness incurred by
Parent and UPRR in connection with the Debt Securities
and/or the Facilities will be repaid from funds generated
internally by Parent and its subsidiaries (including,
after the Merger, if consummated, dividends paid by the
Surviving Corporation and its subsidiaries), through
additional borrowings, through application of proceeds of
dispositions or through a combination of two or more such
sources. No final decisions have been made concerning
the method Parent and UPRR will employ to repay such
indebtedness. Such decisions when made will be based on
Parent's review from time to time of the advisability of
particular actions, as well as on prevailing interest
rates and financial and other economic conditions.
The foregoing description of the terms and
provisions of the Facilities is qualified in its entirety
by reference to the text of the credit agreements
relating to the Facilities, copies of which are filed as
exhibits to the Schedule 14D-1 and are incorporated
herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(b)(4) $1.1 Billion Credit Agreement, dated April 11,
1995, among Parent, Chemical Bank, Citicorp
Securities, Inc., Chemical Securities, Inc. and
the other banks named therein.
(b)(5) $1.2 Billion Credit Agreement, dated April 11,
1995, among Parent, Chemical Bank, Citicorp
Securities, Inc., Chemical Securities, Inc. and
the other banks named therein.
SIGNATURE
After due inquiry and to the best of its knowledge
and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: August 29, 1995 UNION PACIFIC CORPORATION
By: /s/ Carl W. von Bernuth
Name: Carl W. von Bernuth
Title: Senior Vice President
and General Counsel
SIGNATURE
After due inquiry and to the best of its knowledge
and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: August 29, 1995 UP ACQUISITION CORPORATION
By: /s/ Carl W. von Bernuth
Name: Carl W. von Bernuth
Title: Vice President and
Assistant Secretary
SIGNATURE
After due inquiry and to the best of its knowledge
and belief, the undersigned certifies that the
information set forth in this statement is true, complete
and correct.
Dated: August 29, 1995 UNION PACIFIC RAILROAD COMPANY
By: /s/ Carl W. von Bernuth
Name: Carl W. von Bernuth
Title: Senior Vice President
and General Counsel
EXHIBIT INDEX
Exhibit Description
(b)(4) $1.1 Billion Credit Agreement, dated April 11,
1995, among Parent, Chemical Bank, Citicorp
Securities, Inc., Chemical Securities, Inc. and
the other banks named therein.
(b)(5) $1.2 Billion Credit Agreement, dated April 11,
1995, among Parent, Chemical Bank, Citicorp
Securities, Inc., Chemical Securities, Inc. and
the other banks named therein.
Exhibit (b)(4)
[EXECUTION COUNTERPART]
- -----------------------------------------------------------------
U.S. $1,100,000,000
REVOLVING CREDIT AGREEMENT
Dated as of April 11, 1995
Among
UNION PACIFIC CORPORATION,
as Borrower,
THE BANKS NAMED HEREIN,
as Banks,
CHEMICAL BANK
and
CITICORP SECURITIES, INC.,
as Co-Arrangers,
CHEMICAL SECURITIES, INC.,
as Syndication Agent,
CITIBANK, N.A.,
as Documentation Agent,
and
CHEMICAL BANK,
as Administrative Agent
- -----------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . . . . . . . . . . 1
SECTION 1.02. Computation of Time Periods . . . . . . . 13
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . 13
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND SPECIAL RATE LOANS
SECTION 2.01. The Contract Advances; Special Rate
Loans . . . . . . . . . . . . . . . . . . 13
SECTION 2.02. Making the Contract Advances . . . . . . . 15
SECTION 2.03. The Auction Advances . . . . . . . . . . . 16
SECTION 2.04. Conversion and Continuation of Contract
Borrowings . . . . . . . . . . . . . . . 19
SECTION 2.05. Fees . . . . . . . . . . . . . . . . . . . 21
SECTION 2.06. Optional Reduction of the Commitments . . 21
SECTION 2.07. Repayment of Advances and Special Rate
Loans; Prepayment . . . . . . . . . . . . 21
SECTION 2.08. Interest . . . . . . . . . . . . . . . . . 22
SECTION 2.09. Interest Rate Determination . . . . . . . 23
SECTION 2.10. Alternate Rate of Interest . . . . . . . . 23
SECTION 2.11. Increased Costs; Increased Capital . . . . 24
SECTION 2.12. Additional Interest on Eurodollar Rate
Advances . . . . . . . . . . . . . . . . 26
SECTION 2.13. Change in Legality . . . . . . . . . . . . 26
SECTION 2.14. Payments and Computations . . . . . . . . 27
SECTION 2.15. Taxes on Payments . . . . . . . . . . . . 28
SECTION 2.16. Sharing of Payments, Etc. . . . . . . . . 31
SECTION 2.17. Removal of a Bank . . . . . . . . . . . . 31
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial
Borrowing . . . . . . . . . . . . . . . . 32
SECTION 3.02. Conditions Precedent to Each Borrowing . . 33
SECTION 3.03. Borrowings for General Corporate
Purposes. . . . . . . . . . . . . . . . . 33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower . . . . . . . . . . . . . . . . 34
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants . . . . . . . . . . 36
SECTION 5.02. Negative Covenants . . . . . . . . . . . . 39
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . 45
ARTICLE VII
THE ADMINISTRATIVE AGENT, ETC.
SECTION 7.01. Authorization and Action . . . . . . . . . 47
SECTION 7.02. Administrative Agent's Reliance, Etc. . . 48
SECTION 7.03. Chemical Bank and Affiliates . . . . . . . 48
SECTION 7.04. Bank Credit Decision . . . . . . . . . . . 49
SECTION 7.05. Indemnification . . . . . . . . . . . . . 49
SECTION 7.06. Successor Administrative Agent . . . . . . 50
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. . . . . . . . . . . . . . 50
SECTION 8.02. Notices, Etc. . . . . . . . . . . . . . . 51
SECTION 8.03. No Waiver; Remedies . . . . . . . . . . . 52
SECTION 8.04. Costs, Expenses and Taxes . . . . . . . . 52
SECTION 8.05. Right of Set-off . . . . . . . . . . . . . 53
SECTION 8.06. Binding Effect . . . . . . . . . . . . . . 54
SECTION 8.07. Assignments and Participations . . . . . . 54
SECTION 8.08. GOVERNING LAW . . . . . . . . . . . . . . 58
SECTION 8.09. Submission to Jurisdiction; Service of
Process; Jury Trial. . . . . . . . . . . 58
SECTION 8.10. Treatment of Certain Information;
Confidentiality. . . . . . . . . . . . . 58
SECTION 8.11. Execution in Counterparts . . . . . . . . 60
SECTION 8.12. Indemnification. . . . . . . . . . . . . . 60
Schedule I List of Applicable Lending Offices
Schedule II List of Existing Mortgages
Exhibit A-1 Form of Notice of Contract Borrowing
Exhibit A-2 Form of Notice of Auction Borrowing
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel for the Borrower
Exhibit D Form of Opinion of Counsel to the Administrative
Agent
REVOLVING CREDIT AGREEMENT, dated
as of April 11, 1995, among UNION PACIFIC
CORPORATION, a Utah corporation (the
"Borrower"); the banks listed on the
signature pages hereof and any other banks
which from time to time become parties hereto
pursuant to Section 8.07 of this Agreement
(all such banks being referred to herein
collectively as the "Banks"); CHEMICAL BANK
and CITICORP SECURITIES, INC., as Co-
Arrangers (collectively, the "Co-Arrangers");
CHEMICAL SECURITIES, INC., as Syndication
Agent (the "Syndication Agent"); CITIBANK,
N.A., as Documentation Agent (the
"Documentation Agent"); and CHEMICAL BANK, as
agent for the purposes hereinafter provided
(in such capacity, the "Administrative
Agent") for the Banks hereunder.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Adjusted CD Rate" means, for each Adjusted CD Rate
Advance comprising part of the same Contract Borrowing, an
interest rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the sum of (a) a rate per annum equal
to the product of (i) the Fixed CD Rate in effect for the
Interest Period then applicable to such Advance and (ii) 1.00
plus the Domestic Reserve Percentage, plus (b) the Assessment
Rate. For purposes hereof, the term "Fixed CD Rate" shall mean
the arithmetic average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the prevailing rates per annum bid at or
about 10:00 a.m. (New York City time) to each Reference Bank on
the first Business Day of the Interest Period then applicable to
such Contract Borrowing by three New York City negotiable
certificate of deposit dealers of recognized standing for the
purchase at face value of negotiable certificates of deposit of
such Reference Bank in a principal amount approximately equal to
such Reference Bank's portion of such Contract Borrowing and with
a maturity comparable to such Interest Period.
"Adjusted CD Rate Advance" means a Contract Advance
that bears interest based on the Adjusted CD Rate.
"Advance" means any Contract Advance or Auction
Advance.
"Agreement" means this Agreement, as amended, modified
and supplemented from time to time, including, without
limitation, any such supplement in respect of Auction Advances
under Section 2.03(a)(v).
"Alternate Base Rate" means, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time
by Chemical Bank as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as
effective. "Base CD Rate" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) 1.00 plus the
Domestic Reserve Percentage and (b) the Assessment Rate. "Three-
Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board of
Governors of the Federal Reserve System through the public
information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of such Board,
be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not
be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m. (New York City time) on
such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from
three New York City negotiable certificate of deposit dealers of
recognized standing selected by it. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or
both for any reason, including the inability of the
Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall
be determined without regard to clause (b) or (c), or both, of
the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or
the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Advance" means a Contract Advance
which bears interest computed at the Alternate Base Rate.
"Applicable Fee Percentage" means on any date (a) if
the Applicable Margin for such date is or would be determined
with reference to Category 1, 0.100%; (b) if the Applicable
Margin for such date is or would be determined with reference to
Category 2, 0.125%; (c) if the Applicable Margin for such date is
or would be determined with reference to Category 3, 0.150%; and
(d) if the Applicable Margin for such date is or would be
determined with reference to Category 4, 0.250%.
"Applicable Lending Office" means, with respect to each
Bank, such Bank's Domestic Lending Office in the case of an
Alternate Base Rate Advance, such Bank's CD Lending Office in the
case of an Adjusted CD Rate Advance, such Bank's Eurodollar
Lending Office in the case of a Eurodollar Rate Contract Advance
and, in the case of an Auction Advance, the office or affiliate
of such Bank notified by such Bank to the Borrower and the
Administrative Agent as such Bank's Applicable Lending Office
with respect to such Auction Advance.
"Applicable Margin" means, with respect to Adjusted CD
Rate Advances and Eurodollar Rate Contract Advances on any date,
the applicable percentage set forth below for such Type of
Advance under the caption "Applicable Margin" based upon the
ratings applicable on such date to the Borrower's senior,
unsecured, non-credit-enhanced long term indebtedness for
borrowed money ("Index Debt"):
Applicable Margin
Adjusted CD Eurodollar
Ratings Rate Rate
Advances Contract
Advances
Category 1
A- or higher by S&P; and
0.275% 0.150%
A3 or higher by Moody's
Category 2
Lower than A- and equal to or
higher than BBB+ by S&P; and
0.375% 0.250%
Lower than A3 and equal to or
higher than Baa1 by Moody's
Category 3
Lower than BBB+ and equal to
or higher than BBB- by S&P;
and
0.425% 0.300%
Lower than Baa1 and equal to
or higher than Baa3 by
Moody's
Category 4
Lower than BBB- by S&P; or
0.625% 0.500%
Lower than Baa3 by Moody's
For purposes of the foregoing, (i) if neither Moody's nor S&P
shall have in effect a rating for Index Debt (other than by
reason of the circumstances referred to in the last sentence of
this definition), then both such rating agencies will be deemed
to have established ratings for Index Debt in Category 4; (ii) if
only one of Moody's or S&P shall have in effect a rating for
Index Debt, the Borrower and the Banks will negotiate in good
faith to agree upon another rating agency to be substituted by an
amendment to this Agreement for the rating agency which shall not
have a rating in effect, and in the absence of such amendment the
Applicable Margin will be determined by reference to the
available rating; (iii) if the ratings established by Moody's and
S&P shall fall within different Categories, the Applicable Margin
shall be determined by reference to the numerically lower
Category (where Category 1 is the numerically lowest such
Category and Category 4 is the numerically highest such
Category); and (iv) if any rating established by Moody's or S&P
shall be changed (other than as a result of a change in the
rating system of either Moody's or S&P) such change shall be
effective as of the date on which such change is first announced
by the rating agency making such change. Each change in the
Applicable Margin shall apply during the period commencing on the
effective date of such change and ending on the date immediately
preceding the effective date of the next such change. If the
rating system of either Moody's or S&P shall change prior to the
Maturity Date, the Borrower and the Banks shall negotiate in good
faith to amend the references to specific ratings in this
definition to reflect such changed rating system. If both
Moody's and S&P shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Banks shall
negotiate in good faith to agree upon a substitute rating agency
and to amend the references to specific ratings in this
definition to reflect the ratings used by such substitute rating
agency.
"Applicable Rate" means:
(i) with respect to Adjusted CD Rate Advances, the
Adjusted CD Rate plus the Applicable Margin;
(ii) with respect to Alternate Base Rate Advances, the
Alternate Base Rate; and
(iii) with respect to Eurodollar Rate Contract Advances,
the Eurodollar Rate plus the Applicable Margin.
"Assessment Rate" means for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most
recently estimated by the Administrative Agent as the then
current net annual assessment rate that will be employed in
determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or such successor) of time
deposits made in dollars at the Administrative Agent's domestic
offices.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Bank and an Eligible Assignee, and
accepted by the Administrative Agent, in substantially the form
of Exhibit B hereto.
"Auction Advance" means an advance by a Bank to the
Borrower as part of an Auction Borrowing resulting from the
auction bidding procedure described in Section 2.03, and refers
to a Fixed Rate Auction Advance or a Eurodollar Rate Auction
Advance.
"Auction Borrowing" means a Borrowing consisting of
simultaneous Auction Advances of the same Type from each of the
Banks whose offer to make an Auction Advance as part of such
Borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"Auction Reduction" means, as to any Bank as at any
date, an amount equal to such Bank's pro rata (in accordance with
the Commitments) share of the aggregate amount of all Auction
Advances outstanding on such date (giving effect to the payment
of any Auction Advances to be made on such date).
"Borrowing" means a Contract Borrowing or an Auction
Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City and, if
the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings in dollar deposits are carried on in
the London interbank market.
"Category 1", "Category 2", "Category 3" and
"Category 4" have the meanings specified in the definition of
"Applicable Margin" in this Section 1.01.
"CD Lending Office" means, with respect to any Bank,
the office or affiliate of such Bank specified as its "CD Lending
Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Bank (or,
if no such office or affiliate is specified, its Domestic Lending
Office), or such other office or affiliate of such Bank as such
Bank may from time to time specify to the Borrower and the
Administrative Agent.
"Chemical Bank" means Chemical Bank, a New York banking
corporation, and its successors.
"Closing Date" means the date of this Agreement.
"CNW" means Chicago and North Western Transportation
Company, a Delaware corporation.
"Co-Agents" means, collectively, the Syndication Agent,
the Documentation Agent and the Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commitment" has the meaning specified in
Section 2.01(a).
"Contract Advance" means an advance by a Bank to the
Borrower as part of a Contract Borrowing and refers to an
Adjusted CD Rate Advance, an Alternate Base Rate Advance or a
Eurodollar Rate Contract Advance.
"Contract Borrowing" means a Borrowing consisting of
simultaneous Contract Advances of the same Type made ratably by
all of the Banks pursuant to Section 2.01(a).
"Debt" means (i) indebtedness for borrowed money,
(ii) obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations to pay the deferred
purchase price of property (excluding obligations under
agreements for the purchase of goods in the normal course of
business, but including obligations under agreements relating to
the issuance of performance letters of credit or acceptance
financing), (iv) obligations as lessee under leases which shall
have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (v)
obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iv) above and (vi)
liabilities in respect of unfunded vested benefits under Plans
covered by Title IV of ERISA; provided, however, that (x) for the
purposes of Section 5.02(a), "Debt" means only indebtedness for
borrowed money (however evidenced) and (y) for the purposes of
Section 6.01(e), "Debt" means only (1) the obligations described
in clauses (i), (ii) and (iii) above and (2) the obligations
described in clause (v) above (to the extent such obligations
relate to Debt described in clause (i) or (ii) above).
"Default" means any condition or event which, after
notice or lapse of time, or both, would constitute an Event of
Default.
"Domestic Lending Office" means, with respect to any
Bank, the office or affiliate of such Bank specified as its
"Domestic Lending Office" opposite its name on Schedule I hereto
or in the Assignment and Acceptance pursuant to which it became a
Bank, or such other office or affiliate of such Bank as such Bank
may from time to time specify to the Borrower and the
Administrative Agent.
"Domestic Reserve Percentage" means, for any Interest
Period, the reserve percentage applicable on the first day of
such Interest Period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with deposits exceeding
one billion dollars with respect to liabilities consisting of or
including (among other liabilities) U.S. dollar nonpersonal time
deposits in the United States with a maturity equal to such
Interest Period.
"Eligible Assignee" means:
(a) any of the following entities approved in writing
by the Borrower in its sole discretion and notified to the
Administrative Agent, and then only to the extent of a proposed
assignment approved in writing by the Borrower in its sole
discretion and notified to the Administrative Agent: (i) a
commercial bank organized under the laws of the United States, or
any state thereof, and having total assets in excess of
$3,000,000,000 and a combined capital and surplus of at least
$150,000,000; (ii) a commercial bank organized under the laws of
any other country which is a member of the OECD, or a political
subdivision of any such country, and having total assets in
excess of $3,000,000,000 and a combined capital and surplus of at
least $150,000,000, provided that such bank is acting through a
branch or agency located in the United States, in the country in
which it is organized or in another country which is also a
member of the OECD; and (iii) the central bank of any country
which is a member of the OECD; and
(b) an affiliate of the assigning Bank (for which
purposes "affiliate" means a Person controlling, controlled by or
under common control with such assigning Bank).
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) which is a member of a group of which the
Borrower is a member and which is under common control within the
meaning of the regulations under Section 414 of the Code.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System (or any successor regulation), as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Bank, the office or affiliate of such Bank specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it
became a Bank (or, if no such office or affiliate is specified,
its Domestic Lending Office), or such other office or affiliate
of such Bank as such Bank may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the average of the rates at which deposits in U.S.
dollars in immediately available funds approximately equal in
principal amount to (i) in the case of a Contract Borrowing, the
portion of such Eurodollar Rate Contract Advance of the Bank
serving as Administrative Agent and (ii) in the case of an
Auction Borrowing, a principal amount that would have been the
portion of such Auction Borrowing of the Bank serving as
Administrative Agent had such Auction Borrowing been a Contract
Borrowing, and for a maturity comparable to (a) in the case of a
Contract Borrowing, the Interest Period then applicable to such
Contract Advance and (b) in the case of an Auction Borrowing, the
maturity of such Auction Advance, are offered to the principal
London offices of the Reference Banks (or if any Reference Bank
does not at the time maintain a London office, the principal
London office of any affiliate of such Reference Bank) in the
London interbank market at approximately 11:00 a.m. (London time)
two Business Days prior to (x) the commencement of the Interest
Period then applicable to such Contract Advance or (y) the making
of such Auction Advance, as the case may be.
"Eurodollar Rate Advance" means any Eurodollar Rate
Contract Advance or Eurodollar Rate Auction Advance.
"Eurodollar Rate Auction Advance" means an Auction
Advance which bears interest based on the Eurodollar Rate.
"Eurodollar Rate Contract Advance" means a Contract
Advance which bears interest based on the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" of any Bank for
any Eurodollar Rate Advance means the reserve percentage
applicable to such Bank on (i) in the case of a Contract Advance,
the first day of the Interest Period then applicable to such
Contract Advance and (ii) in the case of an Auction Advance, the
date of such Auction Advance, under regulations issued from time
to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the reserve requirement
(including, without limitation, any emergency, supplemental or
other marginal reserve requirement) under Regulation D
promulgated by the Board of Governors of the Federal Reserve
System, or any successor or supplemental regulations, then
applicable to such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period or the term of such Auction
Advance, as the case may be.
"Events of Default" has the meaning specified in
Section 6.01.
"Financial Officer" of any corporation shall mean the
chief financial officer, principal accounting officer, Treasurer
or Controller of such corporation.
"Fixed Rate" means an interest rate per annum
(expressed in the form of a decimal to no more than four decimal
places) specified by a Bank making an Auction Advance under the
auction bidding procedure described in Section 2.03.
"Fixed Rate Auction Advance" means an Auction Advance
which bears interest based on the Fixed Rate.
"Interest Period" means, for each Contract Advance
comprising part of the same Contract Borrowing, the period
commencing on the date of such Contract Advance or on the last
day of the immediately preceding Interest Period applicable to
such Contract Advance, as the case may be, and ending on the last
day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period
shall be (a) in the case of an Alternate Base Rate Advance, until
the next succeeding March 31, June 30, September 30 or
December 31, (b) in the case of an Adjusted CD Rate Advance, 30,
60, 90 or 180 days and (c) in the case of a Eurodollar Rate
Contract Advance, 1 month or 2, 3 or 6 months, as the Borrower
may select (in the case of clause (b) or (c)) by notice to the
Administrative Agent pursuant to Section 2.02(a); provided,
however, that:
(i) Interest Periods commencing on the same date for
Contract Advances comprising part of the same Contract
Borrowing shall be of the same duration;
(ii) subject to clause (iii) below, whenever the last
day of any Interest Period would otherwise occur on a day
other than a Business Day in both New York City and London,
the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day in both such
cities, provided, in the case of any Interest Period for a
Eurodollar Rate Contract Advance, that if such extension
would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business
Day in both such cities; and
(iii) no Interest Period shall end on a date later than
the Maturity Date.
"Majority Banks" means at any time Banks that in the
aggregate (a) represent at least 66-2/3% of the Commitments and
(b) after the expiry or termination of the Commitments, represent
at least 66-2/3% of the aggregate unpaid principal amount of the
Advances and Special Rate Loans.
"Margin Stock" means "margin stock" within the meaning
of Regulation U.
"Material Plan" means either (i) a Plan under which the
present value of the vested benefits exceeds the fair market
value of the assets of such Plan allocable to such benefits by
more than $20,000,000 or (ii) a Plan whose assets have a market
value in excess of $100,000,000.
"Maturity Date" means the fifth anniversary of the
Closing Date; provided that if such date is not a Business Day,
the Maturity Date shall be the immediately preceding Business
Day.
"Merger Agreement" means the Agreement and Plan of
Merger, dated as of March 16, 1995, by and among the Borrower, UP
Rail, Inc. and CNW, as from time to time amended (without
prejudice to Section 5.02(f)).
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which the Borrower or
any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding three plan
years made or accrued an obligation to make contributions.
"Notice of Contract Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Auction Borrowing" has the meaning specified
in Section 2.03(a).
"$1,200,000,000 Agreement" means the $1,200,000,000
Revolving Credit Agreement, dated as of April 11, 1995, among the
Borrower, the banks named therein (which include certain of the
Banks), the co-arrangers, syndication agent and documentation
agent named therein and Chemical Bank, as administrative agent
for said banks, as from time to time amended.
"$1,400,000,000 Credit Agreement" means the
$1,400,000,000 Revolving Credit Agreement, dated as of March 2,
1993, among the Borrower, the banks named therein (which include
certain of the Banks), the co-agents named therein and Chemical
Bank, as administrative agent for said banks, as from time to
time amended.
"OECD" means the Organization for Economic Cooperation
and Development.
"Participating Bank" has the meaning specified in
Section 2.03(a)(v).
"PBGC" means the Pension Benefit Guaranty Corporation
and any entity succeeding to any or all of its functions under
ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) maintained for employees of the Borrower or
any ERISA Affiliate and covered by Title IV of ERISA.
"Railroads" means Union Pacific Railroad Company,
Missouri Pacific Railroad Company, and, after substantially all
shares of the capital stock of CNW (or the surviving corporation
pursuant to the Merger Agreement) shall have been acquired
(directly or indirectly) by the Borrower pursuant to the approval
or exemption (if required) of the Interstate Commerce Commission
(or any successor agency having jurisdiction), Chicago and North
Western Railway Company and Western Railroad Properties,
Incorporated, in each case together with their respective
successors.
"Reference Banks" means Chemical Bank, Citibank, N.A.
and Morgan Guaranty Trust Company of New York, and such other
additional or substitute financial institutions as may be agreed
to by the Borrower, the Administrative Agent and the Majority
Banks from time to time.
"Register" has the meaning specified in
Section 8.07(c).
"Regulation U" means Regulation U issued by the Board
of Governors of the Federal Reserve System, as from time to time
amended.
"Reportable Event" means an event described in Section
4043(b) of ERISA with respect to which the 30-day notice
requirement has not been waived by the PBGC.
"S&P" means Standard and Poor's Ratings Group, a
division of McGraw-Hill, Inc., or any successor thereto.
"Special Rate Loan" means any loan made by a Bank to
the Borrower pursuant to Section 2.01(b).
"Special Rate Loan Reduction" means, as to any Bank as
at any date, an amount equal to such Bank's pro rata (in
accordance with the Commitments) share of the aggregate amount of
all Special Rate Loans outstanding on such date (giving effect to
the payment of any Special Rate Loans to be made on such date).
"Subsidiary" of a Person means any corporation or other
similar entity of which more than 50% of the outstanding capital
stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation or entity (irrespective of
whether or not at the time capital stock of any other class or
classes of such corporation or entity shall or might have voting
power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Tender Offer" means the offer by UP Rail, Inc., a Utah
corporation and wholly owned Subsidiary of the Borrower, to
purchase for cash all of the shares of common stock of CNW not
otherwise owned by the Borrower or any of its affiliates, dated
March 23, 1995, as from time to time amended (without prejudice
to Section 5.02(f)).
"Tender Offer Materials" means, collectively, (i) the
Offer to Purchase for Cash All Outstanding Shares of Common Stock
of Chicago and North Western Transportation Company at $35.00 Net
Per Share by UP Rail, Inc. dated March 23, 1995, (ii) the related
Letter of Transmittal and (iii) the Tender Offer Statement on
Schedule 14D-1 with respect to the Tender Offer filed with the
Securities and Exchange Commission, as any of the same may be
from time to time amended or extended.
"Termination Date" means the Maturity Date or the
earlier date of termination in whole of the Commitments pursuant
to Section 2.06 or 6.01.
"Termination Event" means (i) a "Reportable Event"
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a "Reportable Event" not subject to the
provision for 30-day notice to the PBGC under such regulations),
or (ii) the withdrawal of the Borrower or any of its ERISA
Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA,
or (iii) the filing of a notice of intent to terminate a Plan or
the treatment of a Plan amendment as a termination under Section
4041 of ERISA, or (iv) the institution of proceedings to
terminate a Plan by the PBGC, or (v) any other event or condition
which might constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to
administer, any Plan.
"Type", when used in respect of any Advance or
Borrowing, refers to the Rate by reference to which interest on
such Advance or on the Advances comprising such Borrowing is
determined. For purposes hereof, "Rate" shall include the
Eurodollar Rate, the Adjusted CD Rate, the Alternate Base Rate
and the Fixed Rate.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms
not specifically defined herein shall be construed in accordance
with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements
referred to in Section 4.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND SPECIAL RATE LOANS
SECTION 2.01. The Contract Advances; Special Rate
Loans. (a) Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make Contract Advances to
the Borrower from time to time on any Business Day during the
period from the Closing Date until the Termination Date in an
aggregate amount not to exceed at any time outstanding the
excess, if any, of (i) the amount set opposite such Bank's name
on the signature pages to this Agreement, as such amount may be
reduced pursuant to Section 2.06 or increased pursuant to
Section 2.17 or reduced or increased pursuant to Section 8.07
(such Bank's obligation to make such Advances being hereinafter
referred to as such Bank's "Commitment") over (ii) the aggregate
amount of (x) such Bank's Special Rate Loan Reduction, if any,
and (y) such Bank's Auction Reduction, if any; provided, however,
that at no time shall the aggregate outstanding principal amount
of Contract Advances, Auction Advances and Special Rate Loans
exceed the aggregate amount of the Commitments. Each Contract
Borrowing shall be in an aggregate amount not less than
$10,000,000 (subject to the terms of this Section 2.01(a)) or an
integral multiple of $1,000,000 in excess thereof and shall
consist of Contract Advances of the same Type made on the same
day by the Banks ratably according to their respective
Commitments.
(b) Upon the request of the Borrower, each Bank may,
in its sole discretion, from time to time on any Business Day
during the period from the Closing Date until the Termination
Date, extend loans to the Borrower in an aggregate amount not
less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, at an interest rate and upon repayment terms to
be mutually agreed upon between such Bank and the Borrower
("Special Rate Loans"). The amount of any Special Rate Loan made
by a Bank may exceed such Bank's Commitment; provided that at no
time shall the aggregate amount of Contract Advances, Auction
Advances and Special Rate Loans outstanding exceed the aggregate
amount of the Commitments. Notwithstanding any other provision
of this Agreement, (i) any Special Rate Loan shall be made by a
Bank directly to the Borrower; (ii) all payments in respect of
any Special Rate Loan shall be made by the Borrower directly to
the Bank which made such loan; (iii) Special Rate Loans need not
be made on a pro rata basis among the Banks; and (iv) each
Special Rate Loan shall be entitled to the benefits of the
provisions contained in Articles V and VI and Sections 8.05 and
8.07 hereof unless otherwise agreed by the Borrower and the Bank
which made such loan with written notice to the Administrative
Agent. On each date when any Bank makes a Special Rate Loan, the
Borrower and such Bank shall notify the Administrative Agent
thereof (and the Administrative Agent shall promptly notify the
other Banks), specifying the principal amount of such Special
Rate Loan, the interest rate thereon, the repayment terms and the
maturity thereof.
(c) Within the limits and on the conditions set forth
in this Section 2.01, the Borrower may from time to time borrow
under this Section 2.01, repay pursuant to Sections 2.07(a) and
2.07(b), as appropriate, prepay under Section 2.07(d) and
reborrow under this Section 2.01 and borrow under Section 2.03.
SECTION 2.02. Making the Contract Advances. (a) Each
Contract Borrowing shall be made on notice, given (i) in the case
of a Borrowing consisting of Alternate Base Rate Advances, not
later than 10:30 a.m. (New York City time) on the day of the
proposed Borrowing; (ii) in the case of a Borrowing consisting of
Adjusted CD Rate Advances, not later than 10:30 a.m. (New York
City time) on the second Business Day prior to the day of the
proposed Borrowing; and (iii) in the case of a Borrowing
consisting of Eurodollar Rate Contract Advances, not later than
10:30 a.m. (New York City time) on the third Business Day prior
to the date of the proposed Borrowing, by the Borrower to the
Administrative Agent, which shall give to each Bank prompt notice
thereof by cable or telecopy. Each such notice of a Contract
Borrowing (a "Notice of Contract Borrowing") shall be in
substantially the form of Exhibit A-1 hereto, specifying therein
the requested (i) date of such Contract Borrowing, (ii) Type of
Contract Advances comprising such Contract Borrowing,
(iii) aggregate amount of such Contract Borrowing and
(iv) Interest Period. Each Bank shall, before 12:00 noon (New
York City time) on the date of any such Contract Borrowing, make
available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 8.02,
in same-day funds, such Bank's ratable portion of such Contract
Borrowing. Upon the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's aforesaid
address.
(b) Each Notice of Contract Borrowing shall be
irrevocable and binding on the Borrower. In the case of any
Contract Borrowing which the related Notice of Contract Borrowing
specifies is to be comprised of Eurodollar Rate Contract Advances
or Adjusted CD Rate Advances, the Borrower shall indemnify each
Bank against any loss, cost or expense incurred by such Bank as a
result of any failure by the Borrower to complete such Borrowing
(whether or not due to a failure to fulfill on or before the date
specified in such Notice of Contract Borrowing the applicable
conditions set forth in Article III), such losses, costs and
expenses to include, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund the Contract Advance to be made by
such Bank as part of such Contract Borrowing when such Contract
Advance, as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Contract
Borrowing that such Bank will not make available to the
Administrative Agent such Bank's ratable portion of such Contract
Borrowing, the Administrative Agent may assume that such Bank has
made such portion available to the Administrative Agent on the
date of such Contract Borrowing in accordance with subsection (a)
of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such
Bank shall not have so made such ratable portion available to the
Administrative Agent, such Bank and the Borrower severally agree
to repay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each
day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable
at the time to Contract Advances comprising such Contract
Borrowing and (ii) in the case of such Bank, an interest rate
equal at all times to the Federal Funds Effective Rate (as
defined in the definition of Alternate Base Rate in
Section 1.01). If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Contract Advance as part of such Contract
Borrowing for purposes of this Agreement.
(d) The failure of any Bank to make the Contract
Advance to be made by it as part of any Contract Borrowing shall
not relieve any other Bank of its obligation, if any, hereunder
to make its Contract Advance on the date of such Contract
Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Contract Advance to be made by such
other Bank on the date of any Contract Borrowing.
SECTION 2.03. The Auction Advances. (a) Each Bank
severally agrees that the Borrower may make Auction Borrowings
under this Section 2.03 from time to time on any Business Day
during the period from the Closing Date until the Termination
Date, in each case on the terms and conditions hereinafter set
forth; provided, however, that at no time shall the aggregate
amount of Contract Advances, Auction Advances and Special Rate
Loans outstanding exceed the aggregate amount of the Commitments.
Each Auction Borrowing shall consist of Auction Advances of the
same Type made on the same day.
(i) The Borrower may request an Auction Borrowing
under this Section 2.03 by delivering to the Administrative
Agent (A) in the case of a Borrowing consisting of Fixed
Rate Auction Advances, by not later than 10:00 a.m. (New
York City time) one day prior to the day of the proposed
Auction Borrowing, and (B) in the case of a Borrowing
consisting of Eurodollar Rate Auction Advances, by not later
than 10:00 a.m. (New York City time) on the fourth Business
Day prior to the date of the proposed Auction Borrowing, a
notice of an Auction Borrowing (a "Notice of Auction
Borrowing"), in substantially the form of Exhibit A-2 hereto
specifying the proposed (1) date of such Auction Borrowing,
(2) Type of Auction Advances comprising such Auction
Borrowing, (3) aggregate amount (which shall not be less
than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof) of such Auction Borrowing, (4) maturity date
for repayment of each Auction Advance to be made as part of
such Auction Borrowing (which maturity date shall be, in the
case of a Fixed Rate Auction Borrowing, not earlier than
seven days after the date of such Borrowing, and, in the
case of a Eurodollar Rate Auction Borrowing, not later than
1 month or 2, 3 or 6 months after the date of such
Borrowing, as the Borrower shall elect) and (5) any other
terms to be applicable to such Auction Borrowing. The
Administrative Agent shall in turn promptly notify (by cable
or telecopy) each Bank of each request for an Auction
Borrowing received by it from the Borrower and of the terms
contained in such Notice of Auction Borrowing.
(ii) Each Bank shall, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Auction Advances to the Borrower as part of such proposed
Auction Borrowing at a rate or rates of interest specified
by such Bank in its sole discretion, by notifying (by
telecopy, cable or telephone (in the case of telephone,
immediately confirmed by telecopy)) the Administrative Agent
(which shall give prompt notice thereof to the Borrower),
(A) in the case of a Fixed Rate Auction Borrowing, before
10:00 a.m. (New York City time) on the date of such proposed
Auction Borrowing specified in the Notice of Auction
Borrowing delivered with respect thereto, and (B) in the
case of a Eurodollar Rate Auction Borrowing, before
10:00 a.m. (New York City time) on the third Business Day
prior to the date of such proposed Auction Borrowing
specified in the Notice of Auction Borrowing delivered with
respect thereto, of the maximum amount of each Auction
Advance which such Bank would be willing to make as part of
such proposed Auction Borrowing (which amount may, subject
to the proviso to the first sentence of this Section
2.03(a), exceed such Bank's Commitment), the rate or rates
of interest therefor (and whether reserves are included
therein) and such Bank's Applicable Lending Office with
respect to each such Auction Advance and any other terms and
conditions required by such Bank; provided that, if the Bank
then acting as Administrative Agent shall, in its sole
discretion, elect to make any such offer, it shall notify
the Borrower of such offer before 9:45 a.m. (New York City
time) on the date specified herein for notice of offers by
the other Banks. If any Bank shall fail to notify the
Administrative Agent, before the time specified herein for
notice of offers, that it elects to make such an offer, such
Bank shall be deemed to have elected not to make such an
offer, and such Bank shall not be obligated or entitled to,
and shall not, make any Auction Advance as part of such
Auction Borrowing. If any Bank shall provide telephonic
notice to the Administrative Agent of its election to make
an offer, but such telephonic notice has not been confirmed
by telecopy to the Administrative Agent at or before the
time specified herein for notice of offers, the
Administrative Agent may, in its sole discretion and without
liability to such Bank or the Borrower, elect whether or not
to provide notice thereof to the Borrower.
(iii) The Borrower shall, in turn, (A) in the case of a
Fixed Rate Auction Borrowing, before 11:00 a.m. (New York
City time) on the date of such proposed Auction Borrowing
specified in the Notice of Auction Borrowing delivered with
respect thereto, and (B) in the case of a Eurodollar Rate
Auction Borrowing, before 11:00 a.m. (New York City time) on
the third Business Day prior to the date of such proposed
Auction Borrowing specified in the Notice of Auction
Borrowing delivered with respect thereto, either:
(x) cancel such proposed Auction Borrowing by
giving the Administrative Agent notice to that effect,
or
(y) accept one or more of the offers made by any
Bank or Banks pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Administrative
Agent of the amount of each Auction Advance (which
amount shall be equal to or greater than $1,000,000,
and equal to or less than the maximum amount offered by
such Bank, notified to the Borrower by the
Administrative Agent on behalf of such Bank for such
Auction Advance pursuant to paragraph (ii) above) to be
made by each Bank as part of such Auction Borrowing,
and reject any remaining offers made by Banks pursuant
to paragraph (ii) above, by giving the Administrative
Agent notice to that effect; provided, however, that
the aggregate amount of such offers accepted by the
Borrower shall be equal at least to $10,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(iv) If the Borrower notifies the Administrative Agent
that such Auction Borrowing is canceled pursuant to
paragraph (iii)(x) above, the Administrative Agent shall
give prompt notice (by cable or telecopy) thereof to the
Banks, and such Auction Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Bank or Banks pursuant to paragraph (iii)(y)
above, such offer or offers and the Notice of Auction
Borrowing in respect thereof shall constitute a supplement
to this Agreement in respect of such Auction Borrowing and
the Auction Advances made pursuant thereto, and the
Administrative Agent shall in turn promptly notify (A) each
Bank that has made an offer as described in paragraph (ii)
above of the date and aggregate amount of such Auction
Borrowing, the interest rate thereon and whether or not any
offer or offers made by such Bank pursuant to paragraph (ii)
above have been accepted by the Borrower and (B) each Bank
that is to make an Auction Advance as part of such Auction
Borrowing (a "Participating Bank" as to such Auction
Borrowing) of the amount of each Auction Advance to be made
by such Bank as part of such Auction Borrowing and the
maturity date for the repayment of each such Auction Advance
(together with a confirmation of the Administrative Agent's
understanding of the interest rate and any other terms
applicable to each such Auction Advance; the Administrative
Agent shall assume, unless notified by such Bank to the
contrary, that its understanding of such information is
correct). Each such Participating Bank shall, before 12:00
noon (New York City time) on the date of such Auction
Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding
sentence, make available for the account of its Applicable
Lending Office to the Administrative Agent at its address
referred to in Section 8.02 such Bank's portion of such
Auction Borrowing, in same-day funds. Upon fulfillment of
the applicable conditions set forth in Article III and after
receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
Promptly after each Auction Borrowing, the Administrative
Agent will notify each Bank of the amount of the Auction
Borrowing, such Bank's Auction Reduction resulting therefrom
and the date upon which such Auction Reduction commenced and
is anticipated to terminate.
(b) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time borrow
under this Section 2.03, repay pursuant to Section 2.07(c),
prepay under Section 2.07(d) and reborrow under this Section 2.03
and borrow under Section 2.01.
SECTION 2.04. Conversion and Continuation of Contract
Borrowings. The Borrower shall have the right at any time upon
prior irrevocable notice to the Administrative Agent (i) not
later than 12:00 noon (New York City time), one Business Day
prior to conversion, to convert any Borrowing consisting of
Eurodollar Rate Contract Advances or Adjusted CD Rate Advances
into a Borrowing consisting of Alternate Base Rate Advances, (ii)
not later than 10:00 a.m. (New York City time), two Business Days
prior to conversion or continuation, to convert any Borrowing
consisting of Eurodollar Rate Contract Advances or Alternate Base
Rate Advances into a Borrowing consisting of Adjusted CD Rate
Advances or to continue any Borrowing consisting of Adjusted CD
Rate Advances for an additional Interest Period, (iii) not later
than 10:00 a.m. (New York City time), three Business Days prior
to conversion or continuation, to convert any Borrowing
consisting of Alternate Base Rate Advances or Adjusted CD Rate
Advances into a Borrowing consisting of Eurodollar Rate Contract
Advances or to continue any Borrowing consisting of Eurodollar
Rate Contract Advances for an additional Interest Period,
(iv) not later than 10:00 a.m. (New York City time), three
Business Days prior to conversion, to convert the Interest Period
with respect to any Borrowing consisting of Eurodollar Rate
Contract Advances to another permissible Interest Period, and
(v) not later than 10:00 a.m. (New York City time), two Business
Days prior to conversion, to convert the Interest Period with
respect to any Borrowing consisting of Adjusted CD Rate Advances
to another permissible Interest Period, subject in each case to
the following:
(a) each conversion or continuation shall be made pro
rata among the Banks in accordance with the respective
principal amounts of the Advances comprising the converted
or continued Contract Borrowing;
(b) if less than all the outstanding principal amount
of any Contract Borrowing shall be converted or continued,
the aggregate principal amount of such Contract Borrowing
converted or continued shall be an amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof;
(c) accrued interest on an Advance (or portion
thereof) being converted shall be paid by the Borrower at
the time of conversion;
(d) if any Borrowing consisting of Eurodollar Rate
Contract Advances or Adjusted CD Rate Advances is converted
at a time other than the end of the Interest Period
applicable thereto, the Borrower shall pay, upon demand, any
amounts due to the Banks pursuant to Section 8.04(b) as a
result of such conversion;
(e) any portion of a Contract Borrowing maturing or
required to be repaid in less than one month may not be
converted into or continued as a Borrowing consisting of
Eurodollar Rate Contract Advances;
(f) any portion of a Borrowing maturing or required to
be repaid in less than 30 days may not be converted into or
continued as a Borrowing consisting of Adjusted CD Rate
Advances;
(g) any portion of a Borrowing consisting of
Eurodollar Rate Contract Advances or Adjusted CD Rate
Advances which cannot be converted into or continued as such
by reason of clauses (e) and (f) above shall be
automatically converted at the end of the Interest Period in
effect for such Borrowing into a Borrowing consisting of
Alternate Base Rate Advances; and
(h) no Interest Period may be selected for any
Borrowing consisting of Eurodollar Rate Contract Advances or
Adjusted CD Rate Advances that would end later than the
Maturity Date.
Each notice pursuant to this Section 2.04 shall be
irrevocable and shall refer to this Agreement and specify (i) the
identity and amount of the Contract Borrowing that the Borrower
requests be converted or continued, (ii) whether such Contract
Borrowing is to be converted to or continued as a Borrowing
consisting of Eurodollar Rate Contract Advances, Adjusted CD Rate
Advances or Alternate Base Rate Advances, (iii) if such notice
requests a conversion, the date of such conversion (which shall
be a Business Day) and (iv) if such Contract Borrowing is to be
converted to or continued as a Borrowing consisting of Eurodollar
Rate Contract Advances or Adjusted CD Rate Advances, the Interest
Period with respect thereto. If no Interest Period is specified
in any such notice with respect to any conversion to or
continuation as a Borrowing consisting of Eurodollar Rate
Contract Advances or Adjusted CD Rate Advances, the Borrower
shall be deemed to have selected an Interest Period of one
month's duration, in the case of a Borrowing consisting of
Eurodollar Rate Contract Advances, or 30 days' duration, in the
case of a Borrowing consisting of Adjusted CD Rate Advances. The
Administrative Agent shall advise the other Banks of any notice
given pursuant to this Section 2.04 and of each Bank's portion of
any converted or continued Contract Borrowing. If the Borrower
shall not have given notice in accordance with this Section 2.04
to continue any Contract Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance
with this Section 2.04 to convert such Contract Borrowing), such
Contract Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as a
Borrowing consisting of Alternate Base Rate Advances.
SECTION 2.05. Fees. The Borrower agrees to pay to
each Bank, through the Administrative Agent, a facility fee equal
to the Applicable Fee Percentage multiplied by the daily average
amount of the Commitment of such Bank, whether used or unused,
during the preceding quarter (or shorter period commencing with
the Closing Date or ending with the Termination Date), payable in
arrears on the last day of each March, June, September and
December during the term of the Commitments and on the
Termination Date.
SECTION 2.06. Optional Reduction of the Commitments.
The Borrower shall have the right, upon at least two Business
Days' irrevocable notice to the Administrative Agent, to
terminate in whole or reduce ratably in part the respective
Commitments of the Banks; provided, however, that (i) each
partial reduction shall be in the aggregate amount of $10,000,000
or in an integral multiple of $1,000,000 in excess thereof and
(ii) no such termination or reduction shall be made which would
reduce the Commitments to an amount less than the aggregate
outstanding principal amount of the Advances and Special Rate
Loans. The Administrative Agent shall promptly thereafter notify
each Bank of such termination or reduction.
SECTION 2.07. Repayment of Advances and Special Rate
Loans; Prepayment. (a) The Borrower shall repay to the
Administrative Agent for the account of each Bank the principal
amount of each Contract Advance made by each Bank on the Maturity
Date.
(b) The Borrower shall repay to each Bank making a
Special Rate Loan the principal amount of such Special Rate Loan
on the date when due (as agreed by the Borrower and the Bank
making the relevant Special Rate Loan in accordance with
Section 2.01(b)).
(c) The Borrower shall repay to the Administrative
Agent for the account of each Participating Bank which has made
an Auction Advance on the maturity date of each Auction Advance
(such maturity date being that specified by the Borrower for
repayment of such Auction Advance in the Notice of Auction
Borrowing delivered with respect thereto) the then unpaid
principal amount of such Auction Advance.
(d) The Borrower may, on notice given to the
Administrative Agent (i) in the case of Alternate Base Rate
Advances, not later than 10:30 a.m. (New York City time) on the
day of the proposed prepayment, and (ii) in the case of Adjusted
CD Rate Advances and Eurodollar Rate Contract Advances, not later
than 10:30 a.m. (New York City time) on the second Business Day
prior to the day of the proposed prepayment, stating the proposed
date and aggregate principal amount of the prepayment, and if
such notice is given the Borrower shall, prepay the outstanding
principal amounts of the Contract Advances constituting part of
the same Contract Borrowing in whole or ratably in part;
provided, however, that any such partial prepayment shall be in
an aggregate principal amount not less than $10,000,000, and
provided, further, that any such prepayment of Adjusted CD Rate
Advances or Eurodollar Rate Contract Advances shall be subject to
the provisions of Section 8.04(b) hereof. The Borrower may not
(x) prepay any principal amount of any Auction Advance unless the
Participating Bank making such Auction Advance shall have
expressly agreed thereto or (y) prepay any principal amount of
any Special Rate Loan unless the Bank making such Special Rate
Loan shall have expressly agreed thereto. The Administrative
Agent shall promptly notify each Bank of any prepayments pursuant
to this Section 2.07(d) promptly after any such prepayment. The
Borrower shall have no right to prepay any principal amount of
any Advance except as expressly set forth in this
Section 2.07(d).
SECTION 2.08. Interest. The Borrower shall pay
interest on each Advance and Special Rate Loan made by each Bank
from the date of such Advance or Special Rate Loan, as the case
may be, until paid in full, at the following rates per annum:
(i) Contract Advances. If such Advance is a Contract
Advance, the Applicable Rate from time to time for such
Contract Advance from the date of such Advance until the
last day of the last Interest Period therefor, payable on
the last day of each Interest Period and, in the case of any
Interest Period longer than 90 days (in the case of Adjusted
CD Rate Advances) or three months (in the case of Eurodollar
Rate Contract Advances), on such 90th day or the last day of
such three-month period, as the case may be.
(ii) Auction Advances. If such Advance is an Auction
Advance, a rate per annum equal at all times from the date
of such Advance until the maturity thereof at the rate of
interest for such Auction Advance specified by the
Participating Bank making such Auction Advance in its notice
with respect thereto delivered pursuant to subsection
(a)(ii) of Section 2.03 above, payable on the proposed
maturity date specified by the Borrower for such Auction
Advance in the related Notice of Auction Borrowing delivered
pursuant to subsection (a)(i) of Section 2.03 above,
provided, that in the case of Advances with maturities of
greater than three months, interest shall be payable at the
end of each three-month period for such Advance.
(iii) Special Rate Loans. If such loan is a Special
Rate Loan, a rate per annum equal at all times as agreed to
between the Bank making such Special Rate Loan and the
Borrower at the time of the making of the Special Rate Loan
by such Bank in accordance with Section 2.01(b).
(iv) Default Amounts. In the case of any past-due
amounts of the principal of, or (to the fullest extent
permitted by law) interest on, any Advance or Special Rate
Loan, or any other amount payable under this Agreement, from
the date such amount becomes due until paid in full, payable
on demand, a rate per annum equal at all times to 2% above
the Alternate Base Rate in effect from time to time.
SECTION 2.09. Interest Rate Determination. Each
Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Adjusted
CD Rate or Eurodollar Rate, as applicable. If any one or more of
the Reference Banks shall not furnish such timely information to
the Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such
interest rate on the basis of timely information furnished by the
remaining Reference Banks, subject, however, to Section 2.10(a)
hereof.
SECTION 2.10. Alternate Rate of Interest. (a) If
fewer than two Reference Banks furnish timely information to the
Administrative Agent for determining the Eurodollar Rate for any
Eurodollar Rate Advances or the Adjusted CD Rate for any Adjusted
CD Rate Advances comprising any requested Borrowing, the
Administrative Agent will notify the Banks and the Borrower
thereof, and the right of the Borrower to select Advances of such
Type for such Borrowing or any subsequent Borrowing shall be
suspended until the Administrative Agent shall notify the
Borrower and the Banks that the circumstances causing such
suspension no longer exist, and (i) any request by the Borrower
for a Eurodollar Rate Auction Advance shall be of no force and
effect and shall be denied by the Administrative Agent and (ii)
any request by the Borrower for a Eurodollar Rate Contract
Advance or an Adjusted CD Rate Advance, as the case may be, shall
be deemed to be a request for an Alternate Base Rate Advance; and
(b) If Banks having more than 66-2/3% of the
Commitments shall, at least one Business Day before the date of
any requested Borrowing, notify the Administrative Agent that the
Eurodollar Rate for any Eurodollar Rate Advances or the Adjusted
CD Rate for any Adjusted CD Rate Advances comprising such
Borrowing will not adequately reflect the cost to such Banks of
making or funding their respective Advances for such Borrowing,
the Administrative Agent will notify the Banks and the Borrower
thereof, and the right of the Borrower to select Advances of such
Type for such Borrowing or any subsequent Borrowing shall be
suspended until the Administrative Agent shall notify the
Borrower and the Banks that the circumstances causing such
suspension no longer exist, and (i) any request by the Borrower
for a Eurodollar Rate Auction Advance shall be of no force and
effect and shall be denied by the Administrative Agent and (ii)
any request by the Borrower for a Eurodollar Rate Contract
Advance or an Adjusted CD Rate Advance, as the case may be, shall
be deemed to be a request for an Alternate Base Rate Advance.
SECTION 2.11. Increased Costs; Increased Capital.
(a) If, due to either (i) the introduction after the date hereof
of or any change after the date hereof (other than any change by
way of imposition or increase of reserve requirements, in the
case of Adjusted CD Rate Advances, included in the determination
of the Domestic Reserve Percentage for such Advances or, in the
case of Eurodollar Rate Advances, included in the determination
of the Eurodollar Rate Reserve Percentage for such Advances) in
or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request received from any
central bank or other governmental authority after the date
hereof (whether or not having the force of law), there shall be
any increase in the cost to any Bank of agreeing to make or
making, funding or maintaining Adjusted CD Rate Advances or
Eurodollar Rate Advances, then the Borrower shall from time to
time, upon demand by such Bank (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the
account of such Bank additional amounts sufficient to compensate
such Bank for such increased cost. Increased costs shall not
include income, stamp or other taxes, imposts, duties, charges,
fees, deductions or withholdings imposed, levied, collected,
withheld or assessed by the United States of America or any
political subdivision or taxing authority thereof or therein
(including Puerto Rico) or of the country in which any Bank's
principal office or Applicable Lending Office may be located or
any political subdivision or taxing authority thereof or therein.
Each Bank agrees that, upon the occurrence of any event giving
rise to a demand under this subsection 2.11(a) with respect to
the Eurodollar Lending Office or the CD Lending Office of such
Bank, it will, if requested by the Borrower and to the extent
permitted by law or the relevant governmental authority, endeavor
in good faith and consistent with its internal policies to avoid
or minimize the increase in costs resulting from such event by
endeavoring to change its Eurodollar Lending Office or CD Lending
Office, as appropriate; provided, however, that such avoidance or
minimization can be made in such a manner that such Bank, in its
sole determination, suffers no economic, legal or regulatory
disadvantage. A certificate as to the amount of and specifying
in reasonable detail the basis for such increased cost, submitted
to the Borrower and the Administrative Agent by such Bank, shall
constitute such demand and shall, in the absence of manifest
error, be conclusive and binding for all purposes.
(b) If either (i) the introduction after the date
hereof of, or any change after the date hereof in or in the
interpretation of, any law or regulation or (ii) the compliance
by any Bank with any guideline or request received from any
central bank or other governmental authority after the date
hereof (whether or not having the force of law), affects or would
affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank
and such Bank determines that the amount of such capital is
increased by or based upon the existence of its Advances or
Special Rate Loans or Commitment, then the Borrower shall, from
time to time, upon demand by such Bank (with a copy of such
demand to the Administrative Agent), immediately pay to the
Administrative Agent for the account of such Bank additional
amounts sufficient to compensate such Bank to the extent that
such Bank determined such increase in capital to be allocable to
the existence of such Bank's Advances or Special Rate Loans or
Commitment. A certificate as to the amount of such increased
capital and specifying in reasonable detail the basis therefor,
submitted to the Borrower and the Administrative Agent by such
Bank, shall constitute such demand and shall, in the absence of
manifest error, be conclusive and binding for all purposes. Each
Bank shall use all reasonable efforts to mitigate the effect upon
the Borrower of any such increased capital requirement and shall
assess any cost related to such increased capital on a
nondiscriminatory basis among the Borrower and other borrowers of
such Bank to which it applies and such Bank shall not be entitled
to demand or be compensated for any increased capital requirement
unless it is, as a result of such law, regulation, guideline or
request, such Bank's policy generally to seek to exercise such
rights, where available, against other borrowers of such Bank.
(c) Notwithstanding the foregoing provisions of this
Section 2.11, (i) the Borrower shall not be required to reimburse
any Bank for any increased costs incurred more than three months
prior to the date that such Bank notifies the Borrower in writing
thereof and (ii) in the event any Bank makes an assignment of, or
grants a participation in, an Advance or Special Rate Loan or its
Commitment pursuant to Section 8.07, the Borrower shall not be
obligated to reimburse for increased costs with respect to such
Advance, Special Rate Loan or Commitment to the extent that the
aggregate amount thereof exceeds the aggregate amount for which
the Borrower would have been obligated (determined, in the case
of an assignment, on the basis of laws and regulations in effect
at the time of such assignment) if such Bank had not made such
assignment or granted such participation.
SECTION 2.12. Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to the Administrative Agent for
the account of each Bank any costs which such Bank determines are
attributable to such Bank's compliance with regulations of the
Board of Governors of the Federal Reserve System requiring the
maintenance of reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities. Such costs
shall be paid to the Administrative Agent for the account of such
Bank in the form of additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Bank, from the
date of such Advance until such principal amount is paid in full,
at an interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the
applicable period for such Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Bank for such
period, payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by such
Bank and notified to the Borrower and the Administrative Agent.
A certificate setting forth the amount of such additional
interest, submitted to the Borrower and the Administrative Agent
by such Bank, shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.13. Change in Legality. If any Bank shall,
at least three Business Days before the date of any requested
Borrowing consisting of Eurodollar Rate Advances or at least two
Business Days before the date of any requested Borrowing
consisting of Adjusted CD Rate Advances, notify the
Administrative Agent that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful,
or that any central bank or other governmental authority asserts
that it is unlawful, for such Bank or its Applicable Lending
Office to perform its obligations hereunder to make, fund or
maintain Eurodollar Rate Advances or Adjusted CD Rate Advances
hereunder, the right of the Borrower to select Advances of such
Type from such Bank for such Borrowing or any subsequent
Borrowing shall be suspended until such Bank shall notify the
Administrative Agent that the circumstances causing such
suspension no longer exist; and during the period when such
obligation of such Bank is suspended, any Borrowing consisting of
Eurodollar Rate Advances or Adjusted CD Rate Advances, as the
case may be, shall not exceed the Commitments of the other Banks
less the aggregate amount of any Special Rate Loans and Auction
Advances then outstanding, and shall be made by the other Banks
pro rata according to their respective Commitments.
SECTION 2.14. Payments and Computations. (a) Except
as expressly provided in Section 2.01(b)(ii), the Borrower shall
make each payment hereunder from a bank account of the Borrower
located in the United States not later than 11:00 a.m. (New York
City time) on the day when due in U.S. dollars to the
Administrative Agent at its address referred to in Section 8.02
in same-day funds, without set-off or counterclaim. The
Administrative Agent will promptly thereafter cause to be
distributed like funds to the Banks entitled thereto for the
account of their respective Applicable Lending Offices, in each
case to be applied in accordance with the terms of this
Agreement.
(b) All computations of interest based on the
Alternate Base Rate shall be made by the Administrative Agent on
the basis of a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate (as defined in the
definition of Alternate Base Rate in Section 1.01) and on the
basis of a year of 360 days at all other times, and all
computations of fees and of interest based on the Adjusted CD
Rate, the Eurodollar Rate or the Fixed Rate shall be made by the
Administrative Agent, and all computations of interest pursuant
to Section 2.09 shall be made by the Reference Banks, on the
basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are
payable. Each determination by the Administrative Agent (or, in
the case of Section 2.09, by the Reference Banks) of an interest
rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder shall be stated to
be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of
time shall be included in the computation of payment of interest
or fees, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to the Banks 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 Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent the Borrower shall not have so
made such payment in full to the Administrative Agent, each Bank
shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Effective Rate (as
defined in the definition of Alternate Base Rate in
Section 1.01).
(e) Each Bank shall maintain on its books a loan
account in the name of the Borrower in which shall be recorded
all Advances made by such Bank to the Borrower, the interest rate
and the maturity date of each such Advance and all payments of
principal and interest made by the Borrower with respect to such
Advances. The obligation of the Borrower to repay the Advances
made by each Bank and to pay interest thereon shall be evidenced
by the entries from time to time made in the loan account of such
Bank maintained pursuant to this Section 2.14(e); provided that
the failure to make an entry with respect to an Advance shall not
affect the obligations of the Borrower hereunder with respect to
such Advance. In case of any dispute, action or proceeding
relating to any Advance, the entries in such loan account shall
be prima facie evidence of the amount of such Advance and of any
amounts paid or payable with respect thereto.
(f) The Administrative Agent shall maintain on its
books a set of accounts in which shall be recorded all Advances
made by the Banks to the Borrower, the interest rates and
maturity dates of such Advances and all payments of principal and
interest made thereon. In case of any discrepancy between the
entries in the Administrative Agent's books and the entries in
any Bank's books, such Bank's records shall be considered
correct, in the absence of manifest error.
SECTION 2.15. Taxes on Payments. (a) All payments
made by the Borrower under this Agreement shall be made free and
clear of, and without reduction for or on account of, any income,
stamp or other taxes, imposts, duties, charges, fees, deductions
or withholdings, imposed, levied, collected, withheld or assessed
by the United States of America (or by any political subdivision
or taxing authority thereof or therein) as a result of (i) the
introduction after the date hereof of any law, regulation,
treaty, directive or guideline (whether or not having the force
of law), or (ii) any change after the date hereof in any law,
regulation, treaty, directive or guideline (whether or not having
the force of law), or (iii) any change after the date hereof in
the interpretation or application of any law, regulation, treaty,
directive or guideline (whether or not having the force of law)
or (iv) any such taxes, imposts, duties, charges, fees,
deductions or withholdings being imposed, levied, collected,
withheld or assessed at a greater rate than the rate that would
have been applicable had such an introduction or change not been
made, but only to the extent of the increase in such rate
("Withholding Taxes"). If any Withholding Taxes are required to
be withheld from any amounts payable to or for the account of any
Bank hereunder, the amounts so payable to or for the account of
such Bank shall be increased to the extent necessary to yield to
such Bank (after payment of all Withholding Taxes) interest or
any such other amounts payable hereunder at the rates or in the
amounts payable to or for the account of such Bank under this
Agreement prior to such introduction or change. Whenever any
Withholding Tax is payable by the Borrower, as promptly as
possible thereafter, the Borrower shall send to the
Administrative Agent, for the account of such Bank, a certified
copy of an original official receipt showing payment thereof. If
the Borrower fails to pay any Withholding Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent for the account of any Bank the required
receipts or other required documentary evidence, the Borrower
shall indemnify such Bank or the Administrative Agent for any
incremental taxes, interest or penalties that may become payable
by such Bank or the Administrative Agent as a result of any such
failure.
(b) At least four Business Days prior to the first
Borrowing or, if the first Borrowing does not occur within thirty
days after the date of execution of this Agreement, by the end of
such thirty day period, each Bank that is organized outside the
United States agrees that it will deliver to the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form 1001 (or such other documentation
or information as may, under applicable United States federal
income tax statutes or regulations, be required in order to claim
an exemption or reduction from United States income tax
withholding by reason of an applicable treaty with the United
States, such documentation or other information being hereafter
referred to as "Form 1001") or 4224 (or such other documentation
or information as may, under applicable United States federal
income tax statutes or regulations, be required in order to claim
an exemption from United States income tax withholding for income
that is effectively connected with the conduct of a trade or
business within the United States, such documentation or other
information being hereafter referred to as "Form 4224"), as the
case may be, indicating in each case that such Bank is either
entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes or, as the case may be, is subject to such limited
deduction or withholding as it is capable of recovering in full
from a source other than the Borrower. Each Bank which delivers
to the Borrower and the Administrative Agent a Form 1001 or 4224
pursuant to the next preceding sentence further undertakes to
deliver to the Borrower and the Administrative Agent two further
copies of the said Form 1001 or 4224, or successor applicable
form or certificate, as the case may be, as and when the previous
form filed by it hereunder shall expire or shall become
incomplete or inaccurate in any respect, unless in any of such
cases an event has occurred prior to the date on which any such
delivery would otherwise be required which renders such form
inapplicable.
(c) If at any time any Bank by reason of payment by
the Borrower of any Withholding Taxes obtains a credit against,
or return or reduction of, any tax payable by it, or any other
currently realized tax benefit, which it would not have enjoyed
but for such payment ("Tax Benefit"), such Bank shall thereupon
pay to the Borrower the amount which such Bank shall certify to
be the amount that, after payment, will leave such Bank in the
same economic position it would have been in had it received no
such Tax Benefit ("Equalization Amount"); provided, however, that
if such Bank shall subsequently determine that it has lost the
benefit of all or a portion of such Tax Benefit, the Borrower
shall promptly remit to such Bank the amount certified by such
Bank to be the amount necessary to restore such Bank to the
position it would have been in if no payment had been made
pursuant to this Section 2.15(c); provided, further, however,
that if such Bank shall be prevented by applicable law from
paying the Borrower all or any portion of the Equalization Amount
owing to the Borrower such payment need not be made to the extent
such Bank is so prevented and the amount not paid shall be
credited to the extent lawful against future payment owing to
such Bank; provided, further, however, that the aggregate of all
Equalization Amounts paid by any Bank shall in no event exceed
the aggregate of all amounts paid by the Borrower to such Bank in
respect of Withholding Taxes plus, in the case of a Tax Benefit
that occurs by reason of a refund, interest actually received
from the relevant taxing authority with respect to such refund.
A certificate submitted in good faith by the Bank pursuant to
this Section 2.15(c) shall be deemed conclusive absent manifest
error.
(d) In the event a Bank shall become aware that the
Borrower is required to pay any additional amount to it pursuant
to Section 2.15(a), such Bank shall promptly notify the
Administrative Agent and the Borrower of such fact and shall use
reasonable efforts, consistent with legal and regulatory
restrictions, to change the jurisdiction of its Applicable
Lending Office if the making of such change (i) would avoid the
need for or reduce the amount of any such additional amounts that
may thereafter accrue, (ii) would not, in the good faith
determination of such Bank, be disadvantageous for regulatory or
competitive reasons to such Bank and (iii) would not require such
Bank to incur any cost or forego any economic advantage for which
the Borrower shall not have agreed to reimburse and indemnify
such Bank.
(e) Notwithstanding the foregoing provisions of this
Section 2.15, in the event any Bank makes an assignment of, or
grants a participation in, an Advance or Special Rate Loan or its
Commitment pursuant to Section 8.07, the Borrower shall not be
obligated to pay any taxes, imposts, duties, charges, fees,
deductions or withholdings to the extent that the aggregate
amount thereof exceeds the aggregate amount for which the
Borrower would have been obligated (determined, in the case of an
assignment, on the basis of laws and regulations in effect at the
time of such assignment) if such Bank had not made such
assignment or granted such participation.
SECTION 2.16. Sharing of Payments, Etc. If any Bank
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of setoff or otherwise) on account of
the Contract Advances made by it (other than pursuant to
Sections 2.11, 2.12, 2.15, 2.17, 8.04 or 8.07(g) hereof) in
excess of its ratable share of payments on account of the
Contract Advances obtained by all the Banks, then such Bank shall
forthwith purchase from the other Banks through the
Administrative Agent such participations in the Contract Advances
made by them as shall be necessary to cause such purchasing Bank
to share the excess payment ratably with each of them; provided,
however, that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase
from each Bank shall be rescinded and such Bank shall repay to
the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such Bank's ratable
share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so
recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.16
may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to
such participation as fully as if such Bank were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.17. Removal of a Bank. The Borrower shall
have the right, by giving at least 15 Business Days' prior notice
in writing to the affected Bank and the Administrative Agent, at
any time when no Default or Event of Default has occurred and is
then continuing, to remove as a party hereto any Bank having a
credit rating of C/D (or its equivalent) or lower by Thomson
BankWatch, Inc. (or any successor thereto), such removal to be
effective as of the date specified in such notice from the
Borrower (a "Removal Date"), which date shall be the last day of
an Interest Period. On any Removal Date, the Borrower shall
repay all the outstanding Contract Advances, Special Rate Loans
and Auction Advances of the affected Bank, together with all
accrued interest, fees and all other amounts owing hereunder to
such Bank. Upon such Removal Date and receipt of the payment
referred to above, the Commitment of such affected Bank shall
terminate and such Bank shall cease thereafter to constitute a
Bank hereunder. The Borrower shall have the right to offer to
one or more Banks the right to increase their Commitments up to,
in the aggregate for all such increases, the Commitment of any
Bank which is removed pursuant to the foregoing provisions of
this Section 2.17 (such Commitment being herein called an
"Unallocated Commitment") effective on the relevant Removal Date,
it being understood that no Bank shall be obligated to increase
its Commitment in response to any such offer. The Borrower shall
also have the right to offer all or any portion of an Unallocated
Commitment to one or more commercial banks not parties hereto
having a credit rating higher than C/D (or its equivalent) by
Thomson BankWatch, Inc. (or any successor thereto), and, upon
each such bank's acceptance of such offer and execution and
delivery of an instrument agreeing to the terms and conditions
hereof, each such bank shall become a Bank hereunder with a
Commitment in an amount specified in such instrument. If the
Bank which is removed pursuant to this Section 2.17 is a
Reference Bank, the Administrative Agent, with the consent of the
Borrower (which shall not be unreasonably withheld), shall
appoint a new Reference Bank from among the Banks. The
obligations of the Borrower described in Sections 2.02(b), 2.11,
2.12, 2.15, 8.04 and 8.12 that arose prior to the date of removal
shall survive for the benefit of any Bank removed pursuant to
this Section 2.17 notwithstanding such removal.
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial
Borrowing. The obligation of each Bank to make an Advance on the
occasion of the initial Borrowing is subject to the following
conditions precedent (each of the documents referred to below to
be in form and substance satisfactory to the Administrative
Agent, dated a date on or within 10 days prior to the date of
such Borrowing and in sufficient copies for each Bank):
(a) The Administrative Agent shall have received, on
behalf of the Banks, certified copies of the resolutions of
the Board of Directors of the Borrower approving this
Agreement and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement.
(b) The Administrative Agent shall have received, on
behalf of the Banks, a certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized
to sign this Agreement and the other documents to be
delivered hereunder.
(c) The Administrative Agent shall have received, on
behalf of the Banks, a favorable opinion of the Senior Vice
President and General Counsel or Assistant General Counsel
of the Borrower, substantially in the form of Exhibit C
hereto and as to such other matters as any Bank through the
Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received, on
behalf of the Banks, a favorable opinion of Milbank, Tweed,
Hadley & McCloy, special New York counsel for the
Administrative Agent, substantially in the form of Exhibit D
hereto.
(e) The Borrower shall not have made any change in the
structure or terms of the Tender Offer disclosed to the
Banks prior to the Closing Date, except for changes that, in
the reasonable opinion of the Majority Banks, are not
materially adverse from the standpoint of the financing
contemplated hereby.
(f) The Borrower shall have certified to the
Administrative Agent that all material conditions to the
Tender Offer have been satisfied (without any waiver thereof
by the Borrower).
(g) The Merger Agreement shall be in substantially the
same form as provided to the Banks prior to the Closing
Date, except for amendments that, in the reasonable opinion
of the Majority Banks, are not materially adverse from the
standpoint of the financing contemplated hereby.
(h) The Borrower shall have paid all fees due and
payable as of or before the Closing Date to the Banks.
SECTION 3.02. Conditions Precedent to Each Borrowing.
The obligation of each Bank to make an Advance in connection with
any Borrowing shall be subject to the further conditions
precedent that on the date of such Borrowing the following
statements shall be true (and each of the giving of the
applicable Notice of Contract Borrowing or Notice of Auction
Borrowing and the acceptance by the Borrower of the proceeds of
such Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing such statements
are true):
(i) the representations and warranties contained in
Section 4.01 (excluding those contained in subsections (e)
and (f) thereof and, in the event of a Borrowing for general
corporate purposes, excluding those contained in
subsection (k) thereof) are correct on and as of the date of
such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date; and
(ii) no Default or Event of Default has occurred and is
continuing, or would result from such Borrowing or from the
application of the proceeds therefrom.
SECTION 3.03. Borrowings for General Corporate
Purposes. With respect to any Borrowing the proceeds of which
are to be used in whole or in part for the general corporate
purposes of the Borrower, the conditions precedent set forth in
paragraphs (e), (f) and (g) of Section 3.01 shall be deemed to
have been satisfied upon the consummation of the Tender Offer in
accordance with the terms and conditions hereof and thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Utah.
(b) The execution, delivery and performance by the
Borrower of this Agreement are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's
charter or by-laws or (ii) any law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Borrower of this Agreement
except such as have been duly obtained or made and are in
full force and effect.
(d) This Agreement is the legal, valid and binding
obligation of the Borrower enforceable against the Borrower
in accordance with its terms.
(e) The statement of consolidated financial position
of the Borrower and its consolidated Subsidiaries as at
December 31, 1994, and the related statements of
consolidated income and consolidated changes in common
stockholders' equity of the Borrower and its consolidated
Subsidiaries for the fiscal year then ended, copies of which
have been furnished to each Bank, fairly present the
financial condition of the Borrower and its consolidated
Subsidiaries as at such date and the results of the
operations of the Borrower and its consolidated Subsidiaries
for the period ended on such date, all in accordance with
generally accepted accounting principles consistently
applied, and since December 31, 1994, there has been no
material adverse change in such condition or operations.
(f) There is no pending or threatened action or
proceeding affecting the Borrower or any of its consolidated
Subsidiaries before any court, governmental agency or
arbitrator, (i) which purports to affect the legality,
validity or enforceability of this Agreement, or (ii) which
may materially adversely affect the consummation of the
Tender Offer, or (iii) except as set forth in the Borrower's
annual report on Form 10-K for the fiscal year ended
December 31, 1994 (a copy of which has been furnished to
each Bank), which may materially adversely affect the
financial condition or operations of the Borrower or any of
its Subsidiaries, taken as a whole.
(g) After applying the proceeds of each Advance and
Special Rate Loan, not more than 25% of the value of the
assets of the Borrower and its Subsidiaries (as determined
in good faith by the Borrower) that are subject to
Section 5.02(a)(i) or Section 5.02(d) will consist of or be
represented by Margin Stock.
(h) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying
Margin Stock, and no proceeds of any Advance or Special Rate
Loan will be used for any purpose which violates the
provisions of the regulations of the Board of Governors of
the Federal Reserve System. If requested by any Bank or the
Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Bank a statement in conformity
with the requirements of Federal Reserve Form U-1 referred
to in Regulation U, the statements made in which shall be
such, in the opinion of each Bank, as to permit the
transactions contemplated hereby in accordance with
Regulation U.
(i) No Termination Event has occurred nor is
reasonably expected to occur with respect to any Plan which
may materially adversely affect the financial condition or
operations of the Borrower and its Subsidiaries, taken as a
whole. Neither the Borrower nor any of its ERISA Affiliates
has incurred nor reasonably expects to incur any withdrawal
liability under ERISA to any Multiemployer Plan which may
materially adversely affect the financial condition or
operations of the Borrower and its Subsidiaries, taken as a
whole. Schedule B (Actuarial Information) to the 1993
annual report (Form 5500 Series) with respect to each Plan,
copies of which have been filed with the Internal Revenue
Service and furnished to each Bank, is complete and accurate
in all material respects and in all material respects fairly
presents the funding status of each Plan. No Reportable
Event has occurred and is continuing with respect to any
Plan which may materially adversely affect the financial
condition or operations of the Borrower and its
Subsidiaries, taken as a whole.
(j) The Borrower and its Subsidiaries are in
compliance with all applicable laws and regulations relating
to the environment or to the discharge, transport or storage
of hazardous materials except to the extent that non-
compliance therewith would not have a material adverse
effect on the financial condition or operations of the
Borrower and its Subsidiaries taken as a whole.
(k) (i) True copies of the Tender Offer Materials as
in effect on the date hereof have been delivered to the
Banks; (ii) the Tender Offer is in compliance in all
material respects with applicable law; (iii) all written
information concerning the Borrower and its Subsidiaries
(excluding financial projections) that has been or will
hereafter be made available to the Administrative Agent, any
other Co-Agent, either Co-Arranger or any Bank by the
Borrower or any of its representatives under this Agreement
or in connection with the transactions contemplated hereby
is and will be correct in all material respects and does not
and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make
the statements contained therein not misleading in light of
the circumstances under which such statements were or are
made; and (iv) all financial projections concerning the
Borrower and its Subsidiaries that have been or will be
prepared by the Borrower in writing and made available to
the Administrative Agent, any other Co-Agent, either Co-
Arranger or any Bank by the Borrower or any of its
representatives under this Agreement or in connection with
the transactions contemplated hereby have been or will be
prepared in good faith based upon reasonable assumptions (it
being understood that such projections are subject to
significant uncertainties and contingencies, many of which
are beyond the control of the Borrower, and that no
assurance can be given that the projections will be
realized).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance or Special Rate Loan shall remain unpaid or any Bank
shall have any Commitment hereunder, the Borrower will, and, in
the case of Section 5.01(a), will cause its Subsidiaries to,
unless the Majority Banks shall otherwise consent in writing:
(a) Keep Books; Corporate Existence; Maintenance of
Properties; Compliance with Laws; Insurance.
(i) keep proper books of record and account, all
in accordance with generally accepted accounting
principles;
(ii) preserve and keep in full force and effect
its existence, and preserve and keep in full force and
effect its licenses, rights and franchises to the
extent it deems necessary to carry on its business;
(iii) maintain and keep, or cause to be maintained
and kept, its properties in good repair, working order
and condition, and from time to time make or cause to
be made all needful and proper repairs, renewals,
replacements and improvements, in each case to the
extent it deems necessary to carry on its business;
(iv) use its reasonable efforts to comply in all
material respects with all material applicable
statutes, regulations and orders of, and all material
applicable restrictions imposed by, any governmental
agency in respect of the conduct of its business and
the ownership of its properties, to the extent it deems
necessary to carry on its business, except such as are
being contested in good faith by appropriate
proceedings; and
(v) insure and keep insured its properties in
such amounts (and with such self-insurance and
deductibles) as it deems necessary to carry on its
business and to the extent available on premiums and
other terms which the Borrower or any Subsidiary, as
the case may be, deems appropriate. Any of such
insurance may be carried by, through or with any
captive or affiliated insurance company or by way of
self-insurance as the Borrower or any Subsidiary, as
the case may be, deems appropriate.
Nothing in this subsection shall prohibit the Borrower or any of
its Subsidiaries from discontinuing any business, forfeiting any
license, right or franchise or discontinuing the operation or
maintenance of any of its properties to the extent it deems
appropriate in the conduct of its business.
(b) Net Worth. Maintain an excess of consolidated
total assets over consolidated total liabilities of the
Borrower and its consolidated Subsidiaries of not less than
$2,250,000,000.
(c) Reporting Requirements. Furnish to each Bank:
(i) 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
statement of the consolidated financial condition of
the Borrower and its consolidated Subsidiaries as at
the end of such quarter and the related statements of
income and retained earnings of the Borrower and its
consolidated Subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the
end of such quarter, certified by a principal financial
or accounting officer of the Borrower; provided,
however, that the Borrower may deliver, in lieu of the
foregoing, the quarterly report of the Borrower for
such fiscal quarter on Form 10-Q filed with the
Securities and Exchange Commission or any governmental
authority succeeding to the functions of such
Commission, but only so long as the financial
statements contained in such quarterly report on Form
10-Q relate to the same companies and are substantially
the same in content as the financial statements
referred to in the preceding provisions of this
clause (i);
(ii) as soon as available and in any event within
90 days after the end of each fiscal year of the
Borrower, a copy of the annual report for such year for
the Borrower and its Subsidiaries, containing the
consolidated financial statements of the Borrower and
its consolidated Subsidiaries for such year and
accompanied by a report thereon of Deloitte & Touche or
other independent public accountants of nationally
recognized standing;
(iii) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to its
stockholders generally, and copies of all reports and
registration statements (without exhibits) which the
Borrower files with the Securities and Exchange
Commission or any national securities exchange (other
than registration statements relating to employee
benefit plans);
(iv) promptly after the filing or receiving
thereof, copies of any notices of any of the events set
forth in Section 4043(b) of ERISA or the regulations
thereunder which the Borrower or any Subsidiary files
with the PBGC, or which the Borrower or any Subsidiary
receives from the PBGC to the effect that proceedings
or other action by the PBGC is to be instituted; and
(v) such other information respecting the
condition or operations, financial or otherwise, of the
Borrower or any of its Subsidiaries as any Bank through
the Administrative Agent may from time to time
reasonably request.
(d) Notices. Promptly give notice to the
Administrative Agent and each Bank:
(i) of the occurrence of any Default or Event of
Default; and
(ii) of the commencement of any litigation,
investigation or proceeding affecting the Borrower or
any of its Subsidiaries before any court, governmental
authority or arbitrator which, in the reasonable
judgment of the Borrower, could have a material adverse
effect on the business, operations, property or
financial or other condition of the Borrower and its
Subsidiaries, taken as a whole.
Each notice pursuant to this subsection shall be accompanied by a
statement of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes
to take with respect thereto.
(e) Certificates. Furnish to each Bank:
(i) concurrently with the delivery of the
financial statements referred to in Section
5.01(c)(ii), a letter signed by the independent public
accountants certifying such financial statements to the
effect that, in the course of the examination upon
which their report for such fiscal year was based (but
without any special or additional audit procedures for
that purpose other than review of the terms and
provisions of this Agreement), they did not become
aware of any Default or Event of Default involving
financial or accounting matters, or, if such
accountants became aware of any such Default or Event
of Default, specifying the nature thereof; and
(ii) concurrently with the delivery of the
financial statements or Form 10-Q referred to in
Section 5.01(c)(i), a certificate of a principal
financial or accounting officer of the Borrower stating
that, to the best of such officer's knowledge, the
Borrower during such period has observed or performed
all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement
to be observed, performed or satisfied by it, and that
such officer has obtained no knowledge of any Default
or Event of Default, except as specified in such
certificate.
(f) Use of Proceeds. Use the proceeds of the Advances
and Special Rate Loans solely to finance the Tender Offer
and for the general corporate purposes of the Borrower;
provided that neither any Bank nor the Administrative Agent
nor any other Co-Agent or either Co-Arranger shall have any
responsibility for the use of any of the proceeds of the
Advances or Special Rate Loans.
SECTION 5.02. Negative Covenants. So long as any
Advance or Special Rate Loan shall remain unpaid or any Bank
shall have any Commitment hereunder, the Borrower will not,
without the written consent of the Majority Banks:
(a) Liens, Etc. (i) Create, assume, incur or
suffer to exist, or permit any Subsidiary to create,
assume, incur or suffer to exist, any Mortgage (as
hereinafter defined) upon any stock or indebtedness,
whether now owned or hereafter acquired, of any
Domestic Subsidiary (as hereinafter defined), to secure
any Debt of the Borrower or any other Person (other
than the Advances and Special Rate Loans made
hereunder), without in any such case making effective
provision whereby all of the Advances and Special Rate
Loans made hereunder shall be directly secured equally
and ratably with such Debt, excluding, however, from
the operation of the foregoing provisions of this
paragraph (i) any Mortgage upon stock or indebtedness
of any corporation existing at the time such
corporation becomes a Domestic Subsidiary, or existing
upon stock or indebtedness of a Domestic Subsidiary at
the time of acquisition of such stock or indebtedness,
and any extension, renewal or replacement (or
successive extensions, renewals or replacements) in
whole or in part of any such Mortgage; provided,
however, that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt
so secured at the time of such extension, renewal or
replacement; and provided, further, that such Mortgage
shall be limited to all or such part of the stock or
indebtedness which secured the Mortgage so extended,
renewed or replaced;
(ii) Create, assume, incur or suffer to exist, or
permit any Restricted Subsidiary (as hereinafter
defined) to create, assume, incur or suffer to exist,
any Mortgage upon any Principal Property (as
hereinafter defined), whether owned or leased on the
date hereof or hereafter acquired, to secure any Debt
of the Borrower or any other Person (other than the
Advances and Special Rate Loans made hereunder),
without in any such case making effective provision
whereby all of the Advances and Special Rate Loans made
hereunder shall be directly secured equally and ratably
with such Debt, excluding, however, from the operation
of the foregoing provisions of this paragraph (ii):
(A) any Mortgage upon property owned or
leased by any corporation existing at the time
such corporation becomes a Restricted Subsidiary;
(B) any Mortgage upon property existing at
the time of acquisition thereof or to secure the
payment of all or any part of the purchase price
thereof or to secure any Debt incurred prior to,
at the time of or within 180 days after the
acquisition of such property for the purpose of
financing all or any part of the purchase price
thereof;
(C) any Mortgage upon property to secure all
or any part of the cost of exploration, drilling,
development, construction, alteration, repair or
improvement of all or any part of such property,
or Debt incurred prior to, at the time of or
within 180 days after the completion of such
exploration, drilling, development, construction,
alteration, repair or improvement for the purpose
of financing all or any part of such cost;
(D) any Mortgage securing Debt of a
Restricted Subsidiary owing to the Borrower or to
another Restricted Subsidiary;
(E) any Mortgage existing on the date hereof
and set forth on Schedule II hereto; and
(F) any extension, renewal or replacement
(or successive extensions, renewals or
replacements) in whole or in part of any Mortgage
referred to in the foregoing clauses (A) to (E),
inclusive; provided, however, that the principal
amount of Debt secured thereby shall not exceed
the principal amount of Debt so secured at the
time of such extension, renewal or replacement;
and provided, further, that such Mortgage shall be
limited to all or such part of the property which
secured the Mortgage so extended, renewed or
replaced (plus improvements on such property).
Notwithstanding the foregoing provisions of this
paragraph (ii), the Borrower may, and may permit any
Restricted Subsidiary to, create, assume, incur or
suffer to exist any Mortgage upon any Principal
Property which is not excepted by clauses (A) through
(F), above, without equally and ratably securing the
Advances and Special Rate Loans, provided that the
aggregate amount of Debt then outstanding secured by
such Mortgage and all similar Mortgages does not exceed
10% of the total consolidated stockholders' equity of
the Borrower as shown on the most recent audited
consolidated balance sheet required to be delivered to
the Banks pursuant to Section 5.01(c). For the purpose
of this paragraph (ii), the following types of
transactions shall not be deemed to create a Mortgage
to secure any Debt:
(A) the sale or other transfer of (y) any
oil or gas or minerals in place for a period of
time until, or in an amount such that, the
purchaser will realize therefrom a specified
amount of money (however determined) or a
specified amount of such oil or gas or minerals,
or (z) any other interest in property of the
character commonly referred to as a "production
payment"; and
(B) any Mortgage in favor of the United
States of America or any state thereof, or any
other country, or any political subdivision of any
of the foregoing, to secure partial, progress,
advance or other payments pursuant to the
provisions of any contract or statute, or any
Mortgage upon property of the Borrower or a
Restricted Subsidiary intended to be used
primarily for the purpose of or in connection with
air or water pollution control, provided that no
such Mortgage shall extend to any other property
of the Borrower or a Restricted Subsidiary.
As used in this Section 5.02(a), the following terms
shall have the following meanings notwithstanding any conflicting
definition set forth in Section 1.01:
"Domestic Subsidiary" means a Subsidiary which is
incorporated or conducting its principal operations within the
United States of America or any state thereof or off the coast of
the United States of America but within an area over which the
United States of America or any state thereof has jurisdiction.
"Mortgage" means any mortgage, pledge, lien,
encumbrance, charge or security interest of any kind.
"Principal Property" means (i) any property owned or
leased by the Borrower or any Subsidiary, or any interest of the
Borrower or any Subsidiary in property, located within the United
States of America or any state thereof (including property
located off the coast of the United States of America held
pursuant to lease from any Federal, State or other governmental
body), which is considered by the Borrower to be capable of
producing oil or gas or minerals in commercial quantities, and
(ii) any refinery, smelter or processing or manufacturing plant
owned or leased by the Borrower or any Subsidiary and located
within the United States of America or any state thereof, except
(a) facilities related thereto employed in transportation,
distribution or marketing or (b) any refinery, smelter or
processing or manufacturing plant, or portion thereof, which in
the opinion of the Board of Directors of the Borrower is not a
principal plant in relation to the activities of the Borrower and
its Restricted Subsidiaries taken as a whole.
"Restricted Subsidiary" means any Subsidiary which owns
or leases (as lessor or lessee) a Principal Property but does not
include (i) Union Pacific Railroad Company or any other
Subsidiary which is principally a common carrier by rail or truck
engaged in interstate or intrastate commerce and is subject to
regulation of such activities by any Federal, state or other
governmental body, or (ii) any Subsidiary the principal business
of which is leasing machinery, equipment, vehicles or other
properties none of which is a Principal Property, or financing
accounts receivable, or engaging in ownership and development of
any real property which is not a Principal Property.
(b) Debt to Net Worth Restriction. Create or suffer
to exist, or permit any of its Subsidiaries to create or
suffer to exist, any Debt if, immediately after giving
effect to such Debt and to the receipt and application of
any proceeds thereof, the aggregate amount of Debt of the
Borrower and its consolidated Subsidiaries, on a
consolidated basis, would exceed 200% of the total
consolidated stockholders' equity of the Borrower as shown
on the most recent consolidated balance sheet required to be
delivered to the Banks pursuant to Section 5.01(c).
(c) Restriction on Fundamental Changes. Enter into
any transaction of merger or consolidation, or convey,
transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(i) the corporation formed by such consolidation
or into which the Borrower is merged or the Person
which acquires by conveyance or transfer, or which
leases, the properties and assets of the Borrower
substantially as an entirety shall be a corporation
organized and existing under the laws of the United
States of America, any state thereof or the District of
Columbia (the "Successor Corporation") and shall
expressly assume, by amendment to this Agreement
executed by the Borrower and such Successor Corporation
and delivered to the Administrative Agent, the due and
punctual payment of the principal of and interest on
the Advances and Special Rate Loans made hereunder and
all other amounts payable under this Agreement and the
performance or observance of every covenant hereof on
the part of the Borrower to be performed or observed;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease,
properties or assets of the Borrower would become
subject to a Mortgage which would not be permitted by
Section 5.02(a), the Borrower or the Successor
Corporation, as the case may be, shall take such steps
as shall be necessary effectively to secure the
Advances and Special Rate Loans made hereunder equally
and ratably with (or prior to) all indebtedness secured
thereby; and
(iv) the Borrower shall have delivered to the
Administrative Agent a certificate signed by an
executive officer of the Borrower and a written opinion
of counsel satisfactory to the Administrative Agent
(who may be counsel to the Borrower), each stating that
such transaction and such amendment to this Agreement
comply with this Section 5.02(c) and that all
conditions precedent herein provided for relating to
such transaction have been satisfied.
(d) Prohibition of Sale of Certain Stock. Convey,
sell, assign or otherwise transfer (or permit any Subsidiary
to do so) any of the shares of capital stock of the
Railroads now owned (directly or indirectly) or at any time
hereafter acquired (directly or indirectly) by the Borrower,
provided that nothing in this Section 5.02(d) will prohibit
transfers of shares of capital stock of a Railroad to
another Railroad or to another Subsidiary of the Borrower or
will prohibit the merger or other consolidation of one
Railroad with or into another Railroad or another Subsidiary
of the Borrower.
(e) Compliance with ERISA. To the extent that any
event or action set forth in clauses (i) through (iv) below
would subject the Borrower and its Subsidiaries taken as a
whole to any material liability to the PBGC or otherwise,
(i) terminate, or permit any Subsidiary to terminate, any
Plan; (ii) engage in, or permit any Subsidiary to engage in,
any "prohibited transaction" (as defined in Section 4975 of
the Code) involving any Plan; (iii) incur or suffer to
exist, or permit any Subsidiary to incur or suffer to exist,
any "accumulated funding deficiency" (as defined in Section
302 of ERISA), whether or not waived, involving any Plan; or
(iv) allow or suffer to exist, or permit any Subsidiary to
allow or suffer to exist, any event or condition which
presents a risk of incurring a liability to the PBGC by
reason of termination of any Plan.
(f) Amendments to Tender Offer, Etc. Make any
amendment to the Tender Offer or the Merger Agreement which
is materially adverse from the standpoint of the financing
contemplated hereby, without the prior written consent of
the Majority Banks (which consent shall not be unreasonably
withheld or delayed), it being understood that this
Section 5.02(f) shall be of no further force and effect
after the consummation of the Tender Offer and the other
transactions contemplated by the Merger Agreement in
accordance with the terms and conditions hereof and thereof.
(g) Margin Stock. Permit more than 25%, after
applying the proceeds of each Advance or Special Rate Loan,
of the value of the assets of the Borrower and its
Subsidiaries (as determined in good faith by the Borrower)
that are subject to Section 5.02(a)(i) or Section 5.02(d) to
consist of or be represented by Margin Stock.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) the Borrower shall fail to pay any principal of
any Advance or Special Rate Loan when the same becomes due
and payable; provided, that if any such failure shall result
from the malfunctioning or shutdown of any wire transfer or
other payment system employed by the Borrower to make such
payment or from an inadvertent error of a technical or
clerical nature by the Borrower or any bank or other entity
employed by the Borrower to make such payment, no Event of
Default shall result under this paragraph (a) during the
period (not in excess of two Business Days) required by the
Borrower to make alternate payment arrangements; or
(b) the Borrower shall fail to pay any interest on any
Advance or Special Rate Loan or any fee payable hereunder or
under any agreement executed in connection herewith when the
same becomes due and payable and such failure shall remain
unremedied for ten days; or
(c) any representation or warranty made by the
Borrower herein or by the Borrower (or any of its officers)
in connection with this Agreement (including, without
limitation, any representation or warranty deemed made by
the Borrower at the time of any Advance or Special Rate Loan
pursuant to Article III) shall prove to have been incorrect
in any material respect when made or deemed made; or
(d) the Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the
Administrative Agent or any Bank; or
(e) an event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or
by which there may be secured or evidenced, any Debt of the
Borrower (other than any such Debt owed to any Bank or an
affiliate of any Bank if such event of default shall relate
solely to a restriction on Margin Stock), whether such Debt
now exists or shall hereafter be created, shall happen and
shall result in Debt of the Borrower in excess of
$20,000,000 principal amount becoming or being declared due
and payable prior to the date on which it would otherwise
become due and payable, and such declaration shall not be
rescinded or annulled; or the Borrower shall fail to pay at
maturity (or within five calendar days after maturity) Debt
of the Borrower in excess of $20,000,000 principal amount;
or
(f) (i) the Borrower or any of the Railroads shall
commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Borrower
or any of the Railroads shall make a general assignment for
the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of the Railroads any
case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced against the
Borrower or any of the Railroads any case, proceeding or
other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of
an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Borrower
or any of the Railroads shall take any action in furtherance
of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i),
(ii) or (iii) above; or (v) the Borrower or any of the
Railroads shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as
they become due;
(g) a Material Plan shall fail to maintain the minimum
funding standards required by Section 412 of the Code for
any plan year or a waiver of such standard is sought or
granted under Section 412(d), or a Material Plan is, shall
have been or will be terminated or the subject of
termination proceedings under ERISA, or the Borrower or any
of its Subsidiaries or any ERISA Affiliate has incurred or
will incur a liability to or on account of a Material Plan
under Sections 4062, 4063 or 4064 of ERISA, and there shall
result from any such event either a liability or a material
risk of incurring a liability to the PBGC or a Material Plan
(or a related trust) which will have a material adverse
effect upon the business, operations or the condition
(financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole; or
(h) the Borrower or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it
has incurred withdrawal liability to such Multiemployer Plan
in an amount which, when aggregated with all other amounts
required to be paid to Multiemployer Plans in connection
with withdrawal liabilities (determined as of the date of
such notification), will have a material adverse effect upon
the business, operations or the condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a
whole;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of Banks having at least
66-2/3% of the Commitments, by notice to the Borrower, declare
the obligation of each Bank to make Contract Advances (and to
make any Auction Advances and Special Rate Loans that such Bank
has theretofore committed to make) to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of Banks owed at least 66-2/3%
of the then aggregate unpaid principal amount of the Advances and
Special Rate Loans owing to Banks, by notice to the Borrower,
declare the Advances and Special Rate Loans, all interest thereon
and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances and Special
Rate Loans, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with
respect to the Borrower or any of its Subsidiaries under the
Federal Bankruptcy Code, (A) the obligation of each Bank to make
Contract Advances (and to make any Auction Advances and Special
Rate Loans that such Bank has theretofore committed to make)
shall automatically be terminated and (B) the Advances and
Special Rate Loans, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT, ETC.
SECTION 7.01. Authorization and Action. Each Bank
hereby appoints and authorizes the Administrative Agent to take
such action as administrative agent on its behalf and to exercise
such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters
not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the amounts due
hereunder), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Majority Banks, and such instructions shall be binding upon all
Banks and all holders of Advances and Special Rate Loans;
provided, however, that the Administrative Agent shall not be
required to take any action which exposes the Administrative
Agent to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent agrees to
give to each Bank prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement. Chemical Bank
and Citicorp Securities, Inc., in their capacities as Co-
Arrangers, Chemical Securities, Inc., in its capacity as
Syndication Agent, and Citibank, N.A., in its capacity as
Documentation Agent, shall have no duties, responsibilities or
liabilities whatsoever under this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence
or wilful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may consult with
legal counsel (including 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 in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation
to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations made in or in
connection with this Agreement; (iii) shall not have any duty to
ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or to inspect the property (including
the books and records) of the Borrower; (iv) shall not be
responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; and (v) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by
telecopy, telegram or cable) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Chemical Bank and Affiliates. With
respect to its Commitment and the Advances and Special Rate Loans
made by it, Chemical Bank shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same
as though it were not the Administrative Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated,
include Chemical Bank in its individual capacity. Chemical Bank
and its affiliates may accept deposits from, lend money to, act
as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any of its subsidiaries and any
Person who may do business with or own securities of the Borrower
or any such subsidiary or affiliate, all as if Chemical Bank were
not the Administrative Agent and without any duty to account
therefor to the Banks.
SECTION 7.04. Bank Credit Decision. Each Bank
acknowledges that it has, independently and without reliance upon
the Administrative Agent, any other Co-Agent, either Co-Arranger
or any other Bank and based on the financial statements referred
to in Section 4.01 and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Bank also acknowledges that
it will, independently and without reliance upon the
Administrative Agent, any other Co-Agent, either Co-Arranger or
any other Bank 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 action under this
Agreement.
SECTION 7.05. Indemnification. The Banks agree to
indemnify the Administrative Agent, the other Co-Agents and the
Co-Arrangers (to the extent not promptly reimbursed by the
Borrower), ratably as computed as set forth below from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against any of them in any
way relating to or arising out of the Tender Offer or this
Agreement or any action taken or omitted by the Administrative
Agent under this Agreement, provided that no Bank shall be liable
for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent. Without limitation of
the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any costs and
expenses payable by the Borrower under Section 8.04, to the
extent that the Administrative Agent is not promptly reimbursed
for such costs and expenses by the Borrower. For purposes of
this Section 7.05, ratable allocations among the Banks shall be
made (i) in respect of any demand by the Administrative Agent
prior to a declaration made pursuant to clause (ii) of
Section 6.01, according to the respective amounts of their
Commitments and (ii) thereafter according to the respective
principal amounts of the Advances and Special Rate Loans then
outstanding to them (or, if there are no Advances or Special Rate
Loans at the time outstanding, according to the respective
amounts of their Commitments as most recently in effect). Each
Bank agrees that any reasonable allocation by the Administrative
Agent of expenses or other amounts referred to in this paragraph
between this Agreement, the $1,200,000,000 Credit Agreement and
the $1,400,000,000 Credit Agreement shall be conclusive and
binding for all purposes.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Banks and the Borrower and may be removed
at any time with or without cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have
the right to appoint a successor Administrative Agent with the
consent of the Borrower (which consent shall not be required if
at the time of such appointment any Default or Event of Default
has occurred and is continuing). If no successor Administrative
Agent shall have been so appointed by the Majority Banks, and
shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation
or the Majority Banks' removal of the retiring Administrative
Agent, as applicable, then the retiring Administrative Agent may,
on behalf of the Banks, appoint a successor Administrative Agent,
which shall be a commercial bank organized or licensed under the
laws of the United States of America or of any state thereof and
having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor
Administrative Agent shall succeed to and become vested with all
the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Banks,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that:
(a) no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the
following: (1) waive any of the conditions specified in
Section 3.01, (2) waive any of the conditions specified in
Section 3.02 (if and to the extent that the Borrowing which
is the subject of such waiver would involve an increase in
the aggregate outstanding amount of Advances over the
aggregate amount of Advances outstanding immediately prior
to such Borrowing), (3) increase the Commitments of the
Banks or subject the Banks to any additional obligations,
(4) reduce the principal of, or interest on, the Contract
Advances or any fees or other amounts payable hereunder,
(5) postpone any date fixed for any payment of principal of,
or interest on, the Contract Advances or any fees or other
amounts payable hereunder, (6) make any change which would
alter the percentage of the Commitments or of the aggregate
unpaid principal amount of the Contract Advances, or the
number of Banks, which shall otherwise be required for the
Banks or any of them to take any action hereunder or
(7) amend this Section 8.01;
(b) no amendment, waiver or consent shall, unless in
writing and signed by the Bank holding an Auction Advance at
such time (1) reduce the principal of, or interest on, such
Auction Advance or any fees or other amounts payable
hereunder or thereunder with respect thereto, (2) postpone
any date fixed for any payment of principal of, or interest
on, such Auction Advance or any fees or other amounts
payable hereunder or thereunder with respect thereto, or
(3) subject such Bank to any additional obligations with
respect to such Bank's Auction Advance;
(c) no amendment, waiver or consent shall, unless in
writing and signed by the Bank holding a Special Rate Loan
at such time (1) reduce the principal of, or interest on,
such Special Rate Loan or any fees or other amounts payable
with respect thereto, (2) postpone any date fixed for any
payment of principal of, or interest on, such Special Rate
Loan or any fees or other amounts payable with respect
thereto, or (3) subject such Bank to any additional
obligations with respect to such Bank's Special Rate Loan;
(d) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition
to the Banks required above to take such action, affect the
rights or duties of the Administrative Agent under this
Agreement; and
(e) no amendment, waiver or consent shall, unless in
writing and signed by the Co-Arrangers and the Co-Agents,
alter the last sentence of Section 7.01.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopy, telegraphic or cable communication) and
telecopied, mailed, telegraphed, cabled or delivered, if to the
Borrower, at its address at Martin Tower, Eighth and Eaton
Avenues, Bethlehem, Pennsylvania 18018, Attention: Vice
President and Treasurer, telephone number (610) 861-3200,
telecopier number (610) 861-3111; if to any Bank listed on
Schedule I hereto, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Bank, at
its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Bank; and if to the
Administrative Agent, at its address at Chemical Bank Agency
Services Corporation, Grand Central Tower, 140 East 45th Street,
29th Floor, New York, New York 10017, Attention: Sandra J.
Miklave, with a copy to Chemical Bank, 270 Park Avenue, 8th
Floor, New York, New York 10017, Attention: Julie S. Long; or,
as to the Borrower, any Bank or the Administrative Agent, at such
other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written
notice to the Borrower and the Administrative Agent. All such
notices and communications shall, when telecopied, mailed,
telegraphed or cabled, be effective when sent by telecopy,
deposited in the mails, delivered to the telegraph company or
delivered to the cable company, respectively, except that notices
and communications to the Administrative Agent pursuant to
Article II or VII shall not be effective until received by the
Administrative Agent. The Administrative Agent shall be entitled
to rely on any oral notice made pursuant to Section 2.03(v)
believed by it to be genuine and made by the proper party or
parties, and the Borrower and the Banks, as the case may be,
agree to be conclusively bound by the Administrative Agent's
records in respect of any such notice.
SECTION 8.03. No Waiver; Remedies. No failure on the
part of any Bank or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Taxes. (a) The
Borrower agrees to pay on demand all costs and expenses in
connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement and
the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto and
with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement, and all costs
and expenses, if any (including, without limitation, reasonable
counsel fees and expenses), incurred by the Administrative Agent
or any Bank in connection with the "work-out" or other
enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement and the other documents to be
delivered hereunder. In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies which arise from the
execution and delivery of this Agreement and agrees to save the
Administrative Agent and each Bank harmless from and against any
and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.
(b) If (i) any payment of principal of any Adjusted CD
Rate Advance or Eurodollar Rate Contract Advance or Auction
Advance or Special Rate Loan is made (1) by the Borrower to or
for the account of a Bank other than on the last day of the
Interest Period for such Contract Advance, or on the maturity
date of such Auction Advance or Special Rate Loan, as the case
may be, or as a result of a payment pursuant to Section 2.07(d),
or as a result of acceleration of the maturity of the Advances
and Special Rate Loans pursuant to Section 6.01 or for any other
reason, or (2) by an Eligible Assignee to a Bank other than on
the last day of the Interest Period (or the final maturity date
in the case of an Auction Advance or Special Rate Loan) for such
Advance or Special Rate Loan upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a),
or an assignment of rights and obligations under this Agreement
pursuant to Section 2.17 as a result of a demand by the Borrower,
or (ii) the Borrower fails to convert or continue any Contract
Advance hereunder after irrevocable notice of such conversion or
continuation has been given pursuant to Section 2.04, then the
Borrower shall, upon demand by the affected Bank (with a copy of
such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank any amounts
required to compensate such Bank for any additional losses, costs
or expenses which it may reasonably incur as a result of such
payment or failure, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund or maintain such Advance. A
certificate of such Bank setting forth the amount demanded
hereunder and the basis therefor shall, in the absence of
manifest error, be conclusive and binding for all purposes.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent
to declare the Advances and Special Rate Loans due and payable
pursuant to the provisions of Section 6.01, each Bank is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Advances and
Special Rate Loans made by such Bank, irrespective of whether or
not such Bank shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Bank agrees
promptly to notify the Borrower and the Administrative Agent
after any such setoff and application made by such Bank, provided
that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each
Bank under this Section 8.05 are in addition to other rights and
remedies (including, without limitation, other rights of setoff)
which such Bank may have.
SECTION 8.06. Binding Effect. This Agreement shall
become effective when it shall have been executed by the
Borrower, the Administrative Agent, the other Co-Agents and the
Co-Arrangers and when the Administrative Agent shall have been
notified by each Bank that such Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent, the other Co-Agents, the Co-
Arrangers and each Bank and their respective successors and
assigns.
SECTION 8.07. Assignments and Participations.
(a) Each Bank may and, if demanded by the Borrower pursuant to
subsection (g) hereof, shall assign to one or more banks or other
entities all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its Commitment and the Advances and Special Rate Loans owing
to it); provided, however, that (i) each such assignment shall
(except in the case of outstanding Auction Advances and Special
Rate Loans) be of a constant, and not a varying, percentage of
all of the rights and obligations of the Banks under this
Agreement, (ii) the amount of the Commitment of the assigning
Bank being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to
such assignment) shall in no event be less than the lesser of
(x) the amount set forth opposite the name of such Bank on the
signature pages to this Agreement or in the Assignment and
Acceptance pursuant to which the assigning Bank became a Bank,
and (y) $25,000,000, and shall be an integral multiple of
$1,000,000, (iii) each such assignment shall be to an Eligible
Assignee and (iv) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing fee of $2,500. Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which
effective date shall be at least three Business Days after the
execution thereof, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder
and (y) the Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and obligations
under this Agreement, such Bank shall cease to be a party
hereto), provided that the obligations of the Borrower to the
Bank assignor described in Sections 2.02(b), 2.11, 2.12, 2.15,
8.04 and 8.12 that arose prior to such assignment, and the
obligations of the Bank assignor described in Sections 7.05 and
8.10 that arose prior to such assignment, shall survive the
making of such assignment, notwithstanding that such Bank
assignor may cease to be a "Bank" hereunder. Notwithstanding the
foregoing, any Bank assigning its rights and obligations under
this Agreement may retain any Auction Advances and any Special
Rate Loans made by it outstanding at such time, and in such case
shall retain its rights hereunder in respect of any Advances and
Special Rate Loans so retained until such Advances and Special
Rate Loans have been repaid in full in accordance with this
Agreement.
(b) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, any other Co-Agent,
either Co-Arranger, such assigning Bank or any other Bank 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 action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee,
except for any required consent of the Borrower; (vi) such
assignee appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent
by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed
by it as a Bank.
(c) The Administrative Agent shall maintain at its
address referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and the
Commitment of, and principal amount of the Advances owing to,
each Bank from time to time (the "Register"). Subject to
Section 2.14(f), the entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee representing that
it is an Eligible Assignee, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register, (iii) give prompt notice thereof to the
Borrower and (iv) send a copy thereof to the Borrower.
(e) Each Bank may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the Advances
or Special Rate Loans owing to it); provided, however, that (i)
such Bank's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Bank shall remain solely responsible
to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent and
the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations
under this Agreement; and provided further, however, that such
Bank shall not agree with any such bank or other financial
institution to permit such bank or other financial institution to
enforce the obligations of the Borrower relating to the Advances
or any Special Rate Loan or to approve of any amendment,
modification or waiver of any provision of this Agreement (other
than amendments, modifications or waivers with respect to any
decrease in any fees payable hereunder or the amount of principal
or rate of interest which is payable in respect of such Advances
or Special Rate Loan or any extension of the dates fixed for the
payment thereof).
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant any information relating to the
Borrower furnished to such Bank by or on behalf of the Borrower;
provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to
preserve the confidentiality of any information relating to the
Borrower, this Agreement or the Tender Offer received by it from
such Bank in accordance with Section 8.10.
(g) If any Bank shall make demand for payment under or
shall notify the Borrower that it is affected by an event
described in Section 2.11 or 2.15 hereunder or shall notify the
Administrative Agent pursuant to Section 2.13 hereunder, then
within 15 days after such demand or such notice, the Borrower may
(i) demand that such Bank assign in accordance with this
Section 8.07 to one or more Eligible Assignees designated by the
Borrower all (but not less than all) of such Bank's Commitment
and the Advances and Special Rate Loans owing to it within the
next succeeding 30 days, provided that, if any such Eligible
Assignee designated by the Borrower shall fail to consummate such
assignment on terms acceptable to such Bank, or if the Borrower
shall fail to designate any such Eligible Assignees for all or
part of such Bank's Commitment, Advances and Special Rate Loans,
then such Bank may assign such Commitment, Advances and Special
Rate Loans to any other Eligible Assignee in accordance with this
Section 8.07 during such 30-day period or (ii) terminate all (but
not less than all) of such Bank's Commitment and repay all (but
not less than all) of such Bank's Advances and Special Rate Loans
not so assigned on or before such 30th day in accordance with
Sections 2.06 and 2.07(d) hereof (but without the requirements
stated therein for ratable treatment of the Banks). Nothing in
this Section 8.07(g) shall relieve the Borrower of its
obligations for payment under Section 2.11 or 2.15 arising prior
to an assignment or termination pursuant hereto.
(h) Any Bank may at any time assign all or any portion
of its rights under this Agreement to a Federal Reserve Bank;
provided that no such assignment shall release a Bank from any of
its obligations hereunder. In connection with any such
assignment or proposed assignment, the Borrower will, promptly
upon the request of any Bank, execute and deliver to such Bank a
note evidencing the Borrower's obligations hereunder, in a form
mutually satisfactory to the Borrower and such Bank; provided
that if the Borrower certifies to such Bank upon such request
that it believes any authorization, approval or other action by
the Interstate Commerce Commission (or any successor agency
having jurisdiction) is required for the issuance of such note,
the Borrower shall not be deemed to be in default under this
Section 8.07(h) so long as the Borrower is diligently seeking
such authorization, approval or other action, at such Bank's
expense.
(i) This Section 8.07 sets forth the exclusive manner
by which a Bank may assign its rights and obligations hereunder
or sell participations in or to its rights and obligations
hereunder.
(j) Each Bank agrees to notify the Borrower of any
assignment of or grant of a participating interest in any Advance
or Special Rate Loan, and of the identity of the assignee or
participant.
(k) The Borrower may not assign or delegate any rights
or obligations hereunder without the prior written consent of
each Bank.
SECTION 8.08. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 8.09. Submission to Jurisdiction; Service of
Process; Jury Trial. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York state court
sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Borrower shall at all
times continue to be qualified to do business in and maintain an
office in New York or, alternatively, shall maintain an agent for
service of process in New York and shall provide the
Administrative Agent with notice of the identity of such agent,
such appointment to be documented in a manner satisfactory to the
Administrative Agent. The Borrower hereby agrees that service of
process in any such proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to it at its address
referred to in Section 8.02. The Borrower irrevocably waives, to
the fullest extent permitted by applicable law, any objection
that it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in
an inconvenient forum. EACH OF THE BORROWER, THE CO-ARRANGERS,
THE ADMINISTRATIVE AGENT, THE OTHER CO-AGENTS AND THE BANKS
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THIS
AGREEMENT, THE ADVANCES, THE SPECIAL RATE LOANS OR THE ACTIONS OF
THE BORROWER, THE CO-ARRANGERS, THE ADMINISTRATIVE AGENT, THE
OTHER CO-AGENTS OR ANY BANK IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 8.10. Treatment of Certain Information;
Confidentiality. (a) The Borrower acknowledges that from time
to time financial advisory, investment banking and other services
may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by
any Bank or by one or more subsidiaries or affiliates of such
Bank and the Borrower hereby authorizes each Bank to share any
information delivered to such Bank by the Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Bank to enter into this Agreement, with any
such subsidiary or affiliate, it being understood that any such
subsidiary or affiliate receiving such information shall be bound
by the provisions of paragraph (b) below as if it were a Bank
hereunder. Such authorization shall survive the repayment of the
Advances and Special Rate Loans and the termination of the
Commitments.
(b) Each Bank and the Administrative Agent agrees that
it will not disclose without the prior consent of the Borrower
(other than to its affiliates and to its and its affiliates'
directors, employees, auditors and counsel who are informed of
and agree to respect the confidential nature of such information,
and then only on a "need to know" basis in connection with this
Agreement, the Tender Offer or the financing thereof) any
information (the "Information") with respect to the Borrower (or
its business), CNW or the Tender Offer which is furnished by or
on behalf of the Borrower to such Bank or to the Administrative
Agent in connection with this Agreement, the Tender Offer or the
financing thereof; provided, that the Banks and the
Administrative Agent may disclose any such Information (i) that
is or has become generally available to the public (other than as
a result of a disclosure in violation of this Section 8.10 or the
letter referred to in Section 8.10(e)) or is or becomes available
to the Banks and the Administrative Agent on a non-confidential
basis from a source other than the Borrower or its agents
(unless, to the actual knowledge of the recipient Bank or the
Administrative Agent, such information was provided by such
source in violation of a confidentiality agreement), (ii) as may
be required or appropriate in response to any summons or subpoena
or in connection with any litigation, (iii) in order to comply
with any applicable law or regulation, or in accordance with any
order, ruling or regulatory practice of any bank regulatory
agency (including, without limitation, the Board of Governors of
the Federal Reserve System or any foreign bank regulatory agency)
having or claiming jurisdiction over the relevant Bank or the
Administrative Agent, and (iv) to a proposed assignee or
participant in connection with any proposed assignment or
participation permitted under Section 8.07 as provided in
Section 8.07(f), provided that such proposed assignee or
participant agrees in writing to be bound by the confidentiality
provisions of this Section 8.10.
(c) In the event that any Bank or any Person receiving
Information from such Bank becomes legally compelled to disclose
any of the Information or the existence of this Agreement (other
than to any bank regulatory agency referred to in
Section 8.10(b)(iii) in the course of customary audits of the
relevant Bank), such Bank shall provide the Borrower with notice
of such event promptly upon obtaining knowledge thereof (provided
that such notice is not otherwise prohibited by law) so that the
Borrower may seek a protective order or other appropriate remedy.
In the event that such protective order or other remedy is not
obtained, such Bank shall furnish only that portion of the
Information which in its reasonable opinion it is legally
required to disclose and shall disclose such Information in a
manner reasonably designed to preserve its confidential nature.
(d) Each Bank acknowledges that disclosure of
Information in violation of this Section 8.10 could have serious
consequences, and agrees that, in the event of any breach of this
Section 8.10 by any Bank or its representatives, the Borrower
will be entitled to equitable relief (including injunctive relief
and specific performance) in addition to all other remedies
available to it at law or in equity.
(e) The obligations of each Bank under this
Section 8.10 shall supersede and replace the obligations of such
Bank under the confidentiality letter executed by it in respect
of this financing prior to the date hereof, and the
confidentiality obligations of any proposed assignee that has
executed a confidentiality letter prior to the date on which it
becomes a Bank hereunder pursuant to Section 8.07(a) shall be
superseded by this Section 8.10 upon the date upon which such
assignee becomes a Bank.
(f) Each Bank's obligations and all of the Borrower's
rights and remedies under this Section 8.10 shall survive any
reduction in the Commitments, the termination of this Agreement
or the return or destruction of the Information, in each case
until the date one year after the termination of this Agreement.
SECTION 8.11. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 8.12. Indemnification. (a) The Borrower
agrees to indemnify and hold harmless the Administrative Agent,
each other Co-Agent, each Co-Arranger and each Bank and each of
their respective officers, directors, employees, agents, advisors
and representatives (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, fees and disbursements
of counsel), joint or several, that may be incurred by or
asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or relating to any
investigation, litigation or proceeding or the preparation of any
defense with respect thereto, arising out of or in connection
with or relating to this Agreement or the transactions
contemplated hereby (including without limitation the Tender
Offer) or any use made or proposed to be made with the proceeds
of the Advances or Special Rate Loans, whether or not such
investigation, litigation or proceeding is brought by the
Borrower, any of its Subsidiaries, shareholders or creditors, an
Indemnified Party or any other Person, or an Indemnified Party is
otherwise a party thereto, and whether or not the transactions
contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense (i) results from such
Indemnified Party's gross negligence or wilful misconduct or (ii)
arises out of a final, non-appealable judgment against such
Indemnified Party in favor of the Borrower on the basis of a
breach of this Agreement. The foregoing indemnification shall
not cover any such claims, damages, losses, liabilities or
expenses relating to (i) any income, stamp or other taxes,
imports, duties, charges, fees, deductions or withholdings
imposed, levied, collected, withheld or assessed by the United
States or any political subdivision or taxing authority thereof
or therein (including Puerto Rico) or of the country in which any
Bank's principal office or Applicable Lending Office may be
located or any political subdivision or taxing authority thereof
or therein; (ii) any costs (whenever imposed) to any Bank of
agreeing to make or making, funding or maintaining any Advances
or Special Rate Loans; or (iii) any capital required or expected
to be maintained by any Bank or any corporation controlling such
Bank as a result of such Bank's Commitment or its Advances or
Special Rate Loans, but in each case without prejudice to
Sections 2.02(b), 2.11, 2.12, 2.15 and 8.04.
(b) The Borrower agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to the Borrower or any of its
Subsidiaries, shareholders or creditors or any other Person for
or in connection with the transactions contemplated hereby,
except to the extent such liability is found in a final non-
appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or wilful
misconduct; provided that nothing in this clause (b) shall be
deemed to constitute a waiver of any claim the Borrower may
hereafter have for breach by any party of this Agreement; and
provided, further, that in no event shall any Indemnified Party
be liable for any indirect or consequential damages.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
UNION PACIFIC CORPORATION
By____________________________
Name:
Title:
Administrative Agent
CHEMICAL BANK, as Administrative
Agent
By____________________________
Name:
Title:
Documentation Agent
CITIBANK, N.A., as Documentation
Agent
By____________________________
Name:
Title:
Syndication Agent
CHEMICAL SECURITIES, INC., as
Syndication Agent
By____________________________
Name:
Title:
CO-ARRANGERS
CHEMICAL BANK, as Co-Arranger
By____________________________
Name:
Title:
CITICORP SECURITIES, INC., as
Co-Arranger
By____________________________
Name:
Title:
COMMITMENT BANKS
$62,173,193.00 CHEMICAL BANK
By____________________________
Name:
Title:
$62,173,193.00 CITIBANK, N.A.
By____________________________
Name:
Title:
$47,826,086.96 ABN AMRO BANK N.V., NEW YORK BRANCH
By____________________________
Name:
Title:
By____________________________
Name:
Title:
$47,826,086.96 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By____________________________
Name:
Title:
By____________________________
Name:
Title:
$47,826,086.96 BANK OF MONTREAL
By____________________________
Name:
Title:
$47,826,086.96 THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION)
By____________________________
Name:
Title:
$47,826,086.96 CREDIT SUISSE
By____________________________
Name:
Title:
By____________________________
Name:
Title:
$47,826,086.96 THE FIRST NATIONAL BANK OF CHICAGO
By____________________________
Name:
Title:
$47,826,086.96 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By____________________________
Name:
Title:
$47,826,086.96 NATIONAL WESTMINSTER BANK PLC, NEW
YORK BRANCH
By____________________________
Name:
Title:
$47,826,086.96 NATIONSBANK, N.A. (CAROLINAS)
By____________________________
Name:
Title:
$47,826,086.96 UNION BANK OF SWITZERLAND
By____________________________
Name:
Title:
By____________________________
Name:
Title:
$38,260,869.57 THE BANK OF TOKYO TRUST COMPANY
By____________________________
Name:
Title:
$38,260,869.57 CREDIT LYONNAIS NEW YORK BRANCH
By____________________________
Name:
Title:
$38,260,869.57 THE INDUSTRIAL BANK OF JAPAN
LIMITED NEW YORK BRANCH
By____________________________
Name:
Title:
$38,260,869.57 MELLON BANK, N.A.
By____________________________
Name:
Title:
$38,260,869.57 PNC BANK, NATIONAL ASSOCIATION
By____________________________
Name:
Title:
$38,260,869.57 SOCIETE GENERALE
By____________________________
Name:
Title:
$38,260,869.57 THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By____________________________
Name:
Title:
$38,260,869.57 TORONTO DOMINION (NEW YORK), INC.
By____________________________
Name:
Title:
$23,913,043.48 THE BANK OF CALIFORNIA, N.A.
By____________________________
Name:
Title:
$23,913,043.48 THE BANK OF NEW YORK
By____________________________
Name:
Title:
$23,913,043.48 BANQUE NATIONALE DE PARIS
By____________________________
Name:
Title:
By____________________________
Name:
Title:
$23,913,043.48 THE DAI-ICHI KANGYO BANK, LTD.
By____________________________
Name:
Title:
$23,913,043.48 THE NORTHERN TRUST COMPANY
By____________________________
Name:
Title:
$23,913,043.48 ROYAL BANK OF CANADA
By____________________________
Name:
Title:
$23,913,043.48 THE YASUDA TRUST AND BANKING
COMPANY LIMITED
By____________________________
Name:
Title:
$11,956,521.74 THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By____________________________
Name:
Title:
$11,956,521.74 CRESTAR BANK
By____________________________
Name:
Title:
SCHEDULE I
UNION PACIFIC CORPORATION
Domestic Eurodollar
Name of Bank Lending Office CD Lending Office Lending Office
Chemical Bank 270 Park Avenue Same as Domestic Same as Domestic
New York, New York Lending Office Lending Off ice
10172
Citibank, N.A. 399 Park Avenue Same as Domestic Same as Domestic
New York, New York Lending Office Lending Office
10043
ABN Amro Bank N.V., 500 Park Avenue Same as Domestic Same as Domestic
New York New York, New York Lending Office Lending Office
Branch 10022
Bank of America 1850 Gateway Same as Domestic Same as Domestic
National Trust Boulevard Lending Office Lending Office
and Savings Concord, California
Association 94520
Bank of Montreal 115 South LaSalle Same as Domestic Same as Domestic
Street Lending Office Lending Office
Chicago, Illinois
60603
The Chase Manhattan One Chase Manhattan Same as Domestic Same as Domestic
Bank Plaza Lending Office Lending Office
(National New York, New York
Association) 10081
Credit Suisse 12 East 49th Same as Domestic Same as Domestic
Street, Lending Office Lending Office
42nd Floor
New York, New York
10017
The First National One First National Same as Domestic Same as Domestic
Bank of Plaza Lending Office Lending Office
Chicago Chicago, Illinois
60670
Morgan Guaranty 60 Wall Street Same as Domestic Morgan Guaranty
Trust Company New York, New York Lending Office Trust Company
of New York 10260 of New York
Nassau Bahamas
Office
c/o J. P. Morgan
Services Inc.
Euro-Loan
Servicing Unit
500 Stanton
Christiana Road
Newark, Delaware
19713
National Westminster 175 Water Street, Same as Domestic Nassau Branch
Bank Plc, 19th Floor Lending Office 175 Water Street
New York Branch New York, NY 10038- New York, NY
4924 10038-4924
NationsBank, N.A. 100 North Tryon Same as Domestic Same as Domestic
(Carolinas) Street, Lending Office Lending Office
8th Floor
Charlotte, NC
28255
Union Bank of 299 Park Avenue Same as Domestic Same as Domestic
Switzerland New York, New York Lending Office Lending Office
10171
The Bank of Tokyo 1251 Avenue of the Same as Domestic Same as Domestic
Trust Company Americas Lending Office Lending Office
New York, New York
10116
Credit Lyonnais New 1301 Avenue of the Credit Lyonnais Same as CD
York Americas Cayman Island Lending Office
Branch New York, NY 10019 Branch
c/o Credit Lyonnais
New York Branch
1301 Avenue of the
Americas
New York, NY 10019
The Industrial Bank 245 Park Avenue Same as Domestic Same as Domestic
of Japan New York, NY Lending Office Lending Office
Limited New York 10167-0037
Branch
Mellon Bank, N.A. 7th and Market Same as Domestic Same as Domestic
Streets Lending Office Lending Office
Loan Administration
Room 199-5220
Philadelphia, PA
19106
Attn: Dawn Rudd
PNC Bank, National 100 South Broad Same as Domestic Same as Domestic
Association Street Lending Office Lending Office
Philadelphia, PA
19110
Societe Generale 1221 Avenue of the Same as Domestic Same as Domestic
Americas Lending Office Lending Office
New York, New York
10020
The Sumitomo Bank, 277 Park Avenue Same as Domestic Same as Domestic
Limited, New York, New York Lending Office Lending Office
New York Branch 10172
Toronto Dominion 909 Fannin, Suite Same as Domestic Same as Domestic
(New York), 1700 Lending Office Lending Office
Inc. Houston, TX 77010
The Bank of 400 California Same as Domestic Same as Domestic
California, N.A. Street, Lending Office Lending Office
17th Floor
San Francisco, CA
94104
The Bank of New York One Wall Street Same as Domestic Same as Domestic
New York, New York Lending Office Lending Office
10286
Banque Nationale de 499 Park Avenue Same as Domestic Banque Nationale
Paris New York, New York Lending Office de Paris --
10022 Georgetown
499 Park Avenue
New York,
New York
10022
The Dai-Ichi Kangyo 1 World Trade Same as Domestic Same as Domestic
Bank, Ltd. Center Lending Office Lending Office
Suite 4911
New York, New York
10048
The Northern Trust 50 South LaSalle Same as Domestic Same as Domestic
Company Street Lending Office Lending Office
Chicago, Illinois
60675
Royal Bank of Canada 1 Financial Square, Same as Domestic Same as Domestic
Lending Office Lending Office
Corporate Bkg.
East, USA
New York, New York
10005
The Yasuda Trust 666 Fifth Avenue, Same as Domestic Same as Domestic
and Banking Suite 801 Lending Office Lending Office
Company Limited New York, New York
10103
The Boatmen's One Boatmen's Plaza Same as Domestic Same as Domestic
National Bank of 800 Market Street Lending Office Lending Office
St. Louis St. Louis, MO
63166-0236
Crestar Bank 919 East Main Same as Domestic Same as Domestic
Street Lending Office Lending Office
Richmond, Virginia
23219
SCHEDULE II
Union Pacific Corporation
List of Existing Mortgages
None.
EXHIBIT A-1
Notice of Contract Borrowing
[Date]
Chemical Bank, as Administrative
Agent for the Banks parties
to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Attention:
Gentlemen:
The undersigned, Union Pacific Corporation, refers to
the $1,100,000,000 Revolving Credit Agreement, dated as of
April 11, 1995 (as amended, the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the
undersigned, certain Banks, Co-Arrangers and Co-Agents parties
thereto and Chemical Bank, as Administrative Agent for said
Banks, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Contract Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such
Contract Borrowing (the "Proposed Contract Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Contract
Borrowing is _________________, 19__.
(ii) The Type of Contract Advances comprising the
Proposed Contract Borrowing is [Adjusted CD Rate Advances]
[Alternate Base Rate Advances] [Eurodollar Rate Contract
Advances].
(iii) The aggregate amount of the Proposed Contract
Borrowing is $_____________.
(iv) The Interest Period for each Contract Advance made
as part of the Proposed Contract Borrowing is [___ days]
[__ months[s]].
Very truly yours,
UNION PACIFIC CORPORATION
By: _____________________
Title:
EXHIBIT A-2
Notice of Auction Borrowing
[Date]
Chemical Bank, as Administrative
Agent for the Banks parties
to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Attention:
Gentlemen:
The undersigned, Union Pacific Corporation, refers to
the $1,100,000,000 Revolving Credit Agreement, dated as of
April 11, 1995 (as amended, the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the
undersigned, certain Banks, Co-Arrangers and Co-Agents parties
thereto and Chemical Bank, as Administrative Agent for said
Banks, and hereby gives you notice pursuant to Section 2.03 of
the Credit Agreement that the undersigned hereby requests an
Auction Borrowing under the Credit Agreement, and in that
connection sets forth the terms on which such Auction Borrowing
(the "Proposed Auction Borrowing") is requested to be made:
1. Date of Auction Borrowing _________________
2. Type of Auction Advances
comprising the Proposed
Auction Borrowing
(Eurodollar Rate Auction
Advance or Fixed Rate
Auction Advance) _________________
3. Amount of Auction Borrowing _________________
4. Maturity Date _________________
5. Interest Payment Date(s) _________________
6. Prepayment Provisions _________________
7. _______________________ _________________
8. _______________________ _________________
Very truly yours,
UNION PACIFIC CORPORATION
By: _______________________
Title:
EXHIBIT B
Assignment and Acceptance
Dated ________________, 19__
Reference is made to the $1,100,000,000 Revolving
Credit Agreement, dated as of April 11, 1995 (as amended, the
"Credit Agreement"), among Union Pacific Corporation, a Utah
corporation (the "Borrower"), the Banks, Co-Arrangers and Co-
Agents (each as defined in the Credit Agreement) and Chemical
Bank, as Administrative Agent for the Banks (the "Administrative
Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
___________________ (the "Assignor") and
___________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse and without any representations and
warranties of the Assignor except as specifically set forth
below, and the Assignee hereby purchases and assumes from the
Assignor, a portion of the Assignor's rights and obligations
under the Credit Agreement as of the Effective Date (as defined
below) equal to a _____%(1) interest in and to all of the rights
and obligations of the Banks under the Credit Agreement
(including, without limitation, such percentage interest in the
Commitments as in effect on the Effective Date and the [Contract]
Advances [and Special Rate Loans](2), if any, outstanding on the
Effective Date).
2. The Assignor (i) represents and warrants that as of
the date hereof its Commitment (without giving effect to
assignments thereof which have not yet become effective) is
$_________ and the aggregate outstanding principal amount of
[Contract] Advances [and Special Rate Loans]2 owing to it
(without giving effect to assignments thereof which have not yet
become effective) is $____________; (ii) represents and warrants
that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear
of any adverse claim; (iii) makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto; (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or any other Person or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such
other documents and information as it has deemed appropriate to
____________________
1 Specify percentage to no more than four decimal points.
2 Include if Special Rate Loans are to be assigned.
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent,
any other Co-Agent, either Co-Arranger, the Assignor or any other
Bank 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 action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it
as a Bank; and (vi) specifies as its CD Lending Office, Domestic
Lending Office (and address for notices) and Eurodollar Lending
Office the offices set forth beneath its name on the signature
pages hereof.
4. The effective date for this Assignment and
Acceptance shall be ______________________ (the "Effective
Date").(3) Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent.
5. Upon such acceptance and recording, as of the
Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement, except as
otherwise expressly provided therein.
6. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest
assigned hereby (including, without limitation, all payments of
principal, interest and fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods
prior to the Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
[NAME OF ASSIGNOR]
By: _______________________
Title:
___________________
3 See Section 8.07(a) of the Credit Agreement. Such date
shall be at least three Business Days after the execution of
this Assignment and Acceptance.
[NAME OF ASSIGNEE]
By: _______________________
Title:
Domestic Lending Office (and
address for notices):
[Address]
CD Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ____ day
of ______________, 19__
CHEMICAL BANK, as Administrative
Agent
By: _____________________
Title:
EXHIBIT C
[FORM OF OPINION OF COUNSEL FOR THE BORROWER]
___________ __, 199__
To each of the Banks party to the
$1,100,000,000 Revolving Credit
Agreement, dated as of
April 11, 1995, among Union
Pacific Corporation, certain
Co-Arrangers and Co-Agents, said Banks,
and Chemical Bank, as Administrative
Agent for said Banks;
To Chemical Bank and Citicorp
Securities, Inc., as Co-Arrangers;
To Chemical Securities, Inc., as
Syndication Agent;
To Citibank, N.A., as Documentation
Agent; and
To Chemical Bank, as Administrative Agent
I am the Assistant General Counsel of Union Pacific
Corporation, a Utah corporation (the "Borrower"), and have acted
in such capacity in connection with the execution and delivery of
the $1,100,000,000 Revolving Credit Agreement, dated as of
April 11, 1995 (the "Agreement"), among the Borrower, certain Co-
Arrangers and Co-Agents, the banks parties thereto and Chemical
Bank, as Administrative Agent.
This opinion is delivered to you pursuant to
subsection 3.01(c) of the Agreement. Terms used herein which are
defined in the Agreement shall have the respective meanings set
forth in the Agreement, unless otherwise defined herein.
In connection with this opinion, I have examined
executed copies of the Agreement and such corporate documents and
records of the Borrower and its Subsidiaries, certificates of
public officials and officers of the Borrower and its
Subsidiaries, and such other documents, as I have deemed
necessary or appropriate for the purposes of this opinion. In
stating my opinion, I have assumed the genuineness of all
signatures of, and the authority of, persons signing the
Agreement on behalf of parties thereto other than the Borrower,
the authenticity of all documents submitted to me as originals
and the conformity to authentic original documents of all
documents submitted to me as certified, conformed or photostatic
copies.
Based upon the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Utah.
2. The execution, delivery and performance by the
Borrower of the Agreement are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower's charter or by-
laws or (ii) any law, statute, regulation or order of any
governmental agency or (iii) to the best of my knowledge, any
contractual restriction binding on or affecting the Borrower.
The Agreement has been duly executed and delivered by the
Borrower.
3. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Borrower of the Agreement.
4. The Agreement is a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors
generally and except as the enforceability of the Agreement is
subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at
law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
5. There is no pending or threatened action or
proceeding affecting the Borrower or any of its consolidated
Subsidiaries before any court, governmental agency or arbitrator,
(i) which purports to affect the legality, validity or
enforceability of the Agreement, or (ii) which may materially
adversely affect the consummation of the Tender Offer, or (iii)
except as set forth in the Borrower's annual report on Form 10-K
for the fiscal year ended December 31, 1994, which may materially
adversely affect the financial condition or operations of the
Borrower or any of its Subsidiaries, taken as a whole.
The foregoing opinions are subject to the following
comments and qualifications:
(A) The enforceability of Section 8.12 of the
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws
and the public policy underlying such laws and (ii) laws
limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party
for, liability for its own action or inaction, to the extent
the action or inaction involved gross negligence,
recklessness, wilful misconduct or unlawful conduct.
(B) The enforceability of provisions in the Agreement
to the effect that terms may not be waived or modified
except in writing may be limited under certain
circumstances.
(C) I express no opinion as to (i) the effect of the
laws of any jurisdiction in which any Bank is located (other
than the State of New York) that limit the interest, fees,
or other charges such Bank may impose, (ii) the last
sentence of Section 2.16 of the Agreement, (iii) the first
sentence of Section 8.09 of the Agreement, insofar as such
sentence relates to the subject matter jurisdiction of the
United States District Court for the Southern District of
New York to adjudicate any controversy relating to the
Agreement, and (iv) the waiver of inconvenient forum set
forth in Section 8.09 of the Agreement with respect to
proceedings in federal courts.
I am a member of the Bar of the State of New York and
do not purport to be an expert on any laws other than the laws of
the State of New York and the federal laws of the United States
of America, and except as provided in the next sentence, this
opinion is limited to the present law of such State and the
present federal law of the United States of America. To the
extent that this opinion relates to matters under the laws of the
State of Utah, I have relied on the opinion of Steven A.
Goodsell, Esq., the General Solicitor in Utah for Union Pacific
Railroad Company and Utah counsel for the Borrower, a copy of
which is attached hereto. Such opinion is satisfactory in form
and substance to me and I believe that you and I are justified in
relying thereon.
Very truly yours,
EXHIBIT D
[FORM OF OPINION OF SPECIAL
NEW YORK COUNSEL TO THE ADMINISTRATIVE AGENT]
April [__], 1995
To each of the Banks party to the
$1,100,000,000 Revolving Credit
Agreement, dated as of
April 11, 1995, among Union
Pacific Corporation, certain
Co-Arrangers and Co-Agents, said Banks,
and Chemical Bank, as Administrative
Agent for said Banks;
To Chemical Bank and Citicorp
Securities, Inc., as Co-Arrangers;
To Chemical Securities, Inc., as
Syndication Agent;
To Citibank, N.A., as Documentation
Agent; and
To Chemical Bank, as Administrative Agent
Re: Union Pacific Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to Chemical
Bank ("Chemical Bank") as Administrative Agent (as hereinafter
defined) in connection with the Revolving Credit Agreement dated
as of April 11, 1995 (the "Credit Agreement") among Union Pacific
Corporation (the "Borrower"), the banks named therein (the
"Banks"), Chemical Bank and Citicorp Securities, Inc., as Co-
Arrangers (collectively, the "Co-Arrangers"), Chemical
Securities, Inc., as Syndication Agent (the "Syndication Agent")
Citibank, N.A., as Documentation Agent (the "Documentation
Agent"), and Chemical Bank, as administrative agent for the Banks
(in such capacity, the "Administrative Agent"), providing for
loans to be made by the Banks to the Borrower in an aggregate
principal amount not exceeding $1,100,000,000. Terms defined in
the Credit Agreement are used herein as defined therein. This
opinion letter is being delivered pursuant to Section 3.01(d) of
the Credit Agreement.
In rendering the opinions expressed below, we have
examined the following documents, each of which, unless otherwise
indicated, is dated the date hereof:
(1) A counterpart of the Credit Agreement executed by
the Borrower and the Administrative Agent (we have been
informed by the Administrative Agent that each Co-Arranger,
each Co-Agent and each Bank has executed at least one
counterpart of the Credit Agreement).
(2) A certificate of the Assistant Secretary of the
Borrower with respect to (i) certain resolutions adopted by
the Board of Directors of the Borrower, (ii) the Revised
Articles of Incorporation and the By-laws of the Borrower
and (iii) the incumbency and signatures of certain officers
of the Borrower, delivered pursuant to Sections 3.01(a) and
3.01(b) of the Credit Agreement.
(3) An opinion of Richard T. Ressler, Esq., Assistant
General Counsel of the Borrower, delivered pursuant to
Section 3.01(c) of the Credit Agreement.
(4) Such records of the Borrower and such other
documents as we have deemed necessary as a basis for the
opinions expressed below.
In our examination, we have assumed (x) the genuineness
of all signatures, the authenticity of all documents submitted to
us as originals and the conformity with authentic original
documents of all documents submitted to us as copies, and
(y) that no action, consent or approval of, or registration or
filing with, or any other action by, any governmental authority
is or will be required in connection with the transactions
contemplated by the Credit Agreement, except such as have been
made or obtained and are in full force and effect. When relevant
facts were not independently established, we have relied upon
representations made in or pursuant to the Credit Agreement.
In rendering the opinions expressed below, we have
assumed, with respect to all of the documents referred to in this
opinion letter, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and (except
to the extent set forth in the opinions below as
to the Borrower) constitute legal, valid, binding
and enforceable obligations of, all of the parties
to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power
and authority (corporate or other) to execute,
deliver and perform such documents.
Based upon and subject to the foregoing and subject
also to the comments and qualifications set forth below, having
considered such questions of law as we have deemed necessary as a
basis for the opinions expressed below, and although we have not
independently considered the matters covered by the opinion
listed in item (3) above to the extent necessary to enable us to
express the conclusions stated therein, we are of the opinion
that:
(i) the certificates and opinion referred to in items
(2) and (3) above, respectively, appear to be substantially
responsive to the requirements of Section 3.01 of the Credit
Agreement; and
(ii) the Credit Agreement constitutes the legal, valid
and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
the rights of creditors generally and except as the
enforceability of the Credit Agreement is subject to the
application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following
comments and qualifications:
(A) The enforceability of Section 8.12 of the Credit
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws
and the public policy underlying such laws and (ii) laws
limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party
for, liability for its own action or inaction, to the extent
the action or inaction involves gross negligence,
recklessness, wilful misconduct or unlawful conduct.
(B) The enforceability of provisions in the Credit
Agreement to the effect that terms may not be waived or
modified except in writing may be limited under certain
circumstances.
(C) We express no opinion as to (i) the effect of the
laws of any jurisdiction in which any Bank is located (other
than the State of New York) that limit the interest, fees or
other charges such Bank may impose, (ii) the last sentence
of Section 2.16 of the Credit Agreement, (iii) the first
sentence of Section 8.09 of the Credit Agreement, insofar as
such sentence relates to the subject matter jurisdiction of
the United States District Court for the Southern District
of New York to adjudicate any controversy related to the
Credit Agreement, and (iv) the waiver of inconvenient forum
set forth in Section 8.09 of the Credit Agreement with
respect to proceedings in federal courts.
The foregoing opinions are limited to matters involving
the Federal laws of the United States and the law of the State of
New York, and we do not express any opinion as to the laws of any
other jurisdiction.
At the request of our client, this opinion letter is,
pursuant to Section 3.01(d) of the Credit Agreement, provided to
you by us in our capacity as special New York counsel to the
Administrative Agent and may not be relied upon by any Person for
any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance,
our prior written consent.
Very truly yours,
WFC/PDR
Exhibit (b)(5)
[EXECUTION COUNTERPART]
-----------------------------------------------------------------
U.S. $1,200,000,000
REVOLVING CREDIT AGREEMENT
Dated as of April 11, 1995
Among
UNION PACIFIC CORPORATION,
as Borrower,
THE BANKS NAMED HEREIN,
as Banks,
CHEMICAL BANK
and
CITICORP SECURITIES, INC.,
as Co-Arrangers,
CHEMICAL SECURITIES, INC.,
as Syndication Agent,
CITIBANK, N.A.,
as Documentation Agent,
and
CHEMICAL BANK,
as Administrative Agent
-----------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . . . . . . . . . . 1
SECTION 1.02. Computation of Time Periods . . . . . . . 11
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . 11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND SPECIAL RATE LOANS
SECTION 2.01. The Contract Advances; Special Rate
Loans . . . . . . . . . . . . . . . . . . 11
SECTION 2.02. Making the Contract Advances . . . . . . . 12
SECTION 2.03. The Auction Advances . . . . . . . . . . . 14
SECTION 2.04. Conversion and Continuation of Contract
Borrowings . . . . . . . . . . . . . . . 17
SECTION 2.05. Fees . . . . . . . . . . . . . . . . . . . 19
SECTION 2.06. Optional Reduction of the Commitments . . 19
SECTION 2.07. Repayment of Advances and Special Rate
Loans; Prepayment . . . . . . . . . . . . 19
SECTION 2.08. Interest . . . . . . . . . . . . . . . . . 20
SECTION 2.09. Interest Rate Determination . . . . . . . 21
SECTION 2.10. Alternate Rate of Interest . . . . . . . . 21
SECTION 2.11. Increased Costs; Increased Capital . . . . 22
SECTION 2.12. Additional Interest on Eurodollar Rate
Advances . . . . . . . . . . . . . . . . 24
SECTION 2.13. Change in Legality . . . . . . . . . . . . 24
SECTION 2.14. Payments and Computations . . . . . . . . 25
SECTION 2.15. Taxes on Payments . . . . . . . . . . . . 26
SECTION 2.16. Sharing of Payments, Etc. . . . . . . . . 29
SECTION 2.17. Removal of a Bank . . . . . . . . . . . . 29
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial
Borrowing . . . . . . . . . . . . . . . . 30
SECTION 3.02. Conditions Precedent to Each Borrowing . . 31
SECTION 3.03. Borrowings for General Corporate
Purposes. . . . . . . . . . . . . . . . . 31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower . . . . . . . . . . . . . . . . 32
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants . . . . . . . . . . 34
SECTION 5.02. Negative Covenants . . . . . . . . . . . . 37
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . . . . . . . . . . . . 43
ARTICLE VII
THE ADMINISTRATIVE AGENT, ETC.
SECTION 7.01. Authorization and Action . . . . . . . . . 45
SECTION 7.02. Administrative Agent's Reliance, Etc. . . 46
SECTION 7.03. Chemical Bank and Affiliates . . . . . . . 46
SECTION 7.04. Bank Credit Decision . . . . . . . . . . . 47
SECTION 7.05. Indemnification . . . . . . . . . . . . . 47
SECTION 7.06. Successor Administrative Agent . . . . . . 48
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. . . . . . . . . . . . . . 48
SECTION 8.02. Notices, Etc. . . . . . . . . . . . . . . 49
SECTION 8.03. No Waiver; Remedies . . . . . . . . . . . 50
SECTION 8.04. Costs, Expenses and Taxes . . . . . . . . 50
SECTION 8.05. Right of Set-off . . . . . . . . . . . . . 51
SECTION 8.06. Binding Effect . . . . . . . . . . . . . . 52
SECTION 8.07. Assignments and Participations . . . . . . 52
SECTION 8.08. GOVERNING LAW . . . . . . . . . . . . . . 56
SECTION 8.09. Submission to Jurisdiction; Service of
Process; Jury Trial. . . . . . . . . . . 56
SECTION 8.10. Treatment of Certain Information;
Confidentiality. . . . . . . . . . . . . 56
SECTION 8.11. Execution in Counterparts . . . . . . . . 58
SECTION 8.12. Indemnification. . . . . . . . . . . . . . 58
Schedule I List of Applicable Lending Offices
Schedule II List of Existing Mortgages
Exhibit A-1 Form of Notice of Contract Borrowing
Exhibit A-2 Form of Notice of Auction Borrowing
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel for the Borrower
Exhibit D Form of Opinion of Counsel to the Administrative
Agent
REVOLVING CREDIT AGREEMENT, dated
as of April 11, 1995, among UNION PACIFIC
CORPORATION, a Utah corporation (the
"Borrower"); the banks listed on the
signature pages hereof and any other banks
which from time to time become parties hereto
pursuant to Section 8.07 of this Agreement
(all such banks being referred to herein
collectively as the "Banks"); CHEMICAL BANK
and CITICORP SECURITIES, INC., as Co-
Arrangers (collectively, the "Co-Arrangers");
CHEMICAL SECURITIES, INC., as Syndication
Agent (the "Syndication Agent"); CITIBANK,
N.A., as Documentation Agent (the
"Documentation Agent"); and CHEMICAL BANK, as
agent for the purposes hereinafter provided
(in such capacity, the "Administrative
Agent") for the Banks hereunder.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Adjusted CD Rate" means, for each Adjusted CD Rate
Advance comprising part of the same Contract Borrowing, an
interest rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the sum of (a) a rate per annum equal
to the product of (i) the Fixed CD Rate in effect for the
Interest Period then applicable to such Advance and (ii) 1.00
plus the Domestic Reserve Percentage, plus (b) the Assessment
Rate. For purposes hereof, the term "Fixed CD Rate" shall mean
the arithmetic average (rounded upwards, if necessary, to the
next 1/100 of 1%) of the prevailing rates per annum bid at or
about 10:00 a.m. (New York City time) to each Reference Bank on
the first Business Day of the Interest Period then applicable to
such Contract Borrowing by three New York City negotiable
certificate of deposit dealers of recognized standing for the
purchase at face value of negotiable certificates of deposit of
such Reference Bank in a principal amount approximately equal to
such Reference Bank's portion of such Contract Borrowing and with
a maturity comparable to such Interest Period.
"Adjusted CD Rate Advance" means a Contract Advance
that bears interest based on the Adjusted CD Rate.
"Advance" means any Contract Advance or Auction
Advance.
"Agreement" means this Agreement, as amended, modified
and supplemented from time to time, including, without
limitation, any such supplement in respect of Auction Advances
under Section 2.03(a)(v).
"Alternate Base Rate" means, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the greatest of (a) the Prime Rate in effect on such
day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time
by Chemical Bank as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as
effective. "Base CD Rate" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) 1.00 plus the
Domestic Reserve Percentage and (b) the Assessment Rate. "Three-
Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board of
Governors of the Federal Reserve System through the public
information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of such Board,
be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not
be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m. (New York City time) on
such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from
three New York City negotiable certificate of deposit dealers of
recognized standing selected by it. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates
on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or
both for any reason, including the inability of the
Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall
be determined without regard to clause (b) or (c), or both, of
the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such
change in the Prime Rate, the Three-Month Secondary CD Rate or
the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Advance" means a Contract Advance
which bears interest computed at the Alternate Base Rate.
"Applicable Fee Percentage" means on any date 0.060%.
"Applicable Lending Office" means, with respect to each
Bank, such Bank's Domestic Lending Office in the case of an
Alternate Base Rate Advance, such Bank's CD Lending Office in the
case of an Adjusted CD Rate Advance, such Bank's Eurodollar
Lending Office in the case of a Eurodollar Rate Contract Advance
and, in the case of an Auction Advance, the office or affiliate
of such Bank notified by such Bank to the Borrower and the
Administrative Agent as such Bank's Applicable Lending Office
with respect to such Auction Advance.
"Applicable Rate" means:
(i) with respect to Adjusted CD Rate Advances, the
Adjusted CD Rate plus 0.315%;
(ii) with respect to Alternate Base Rate Advances, the
Alternate Base Rate; and
(iii) with respect to Eurodollar Rate Contract Advances,
the Eurodollar Rate plus 0.190%
"Assessment Rate" means for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most
recently estimated by the Administrative Agent as the then
current net annual assessment rate that will be employed in
determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for
insurance by such Corporation (or such successor) of time
deposits made in dollars at the Administrative Agent's domestic
offices.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Bank and an Eligible Assignee, and
accepted by the Administrative Agent, in substantially the form
of Exhibit B hereto.
"Auction Advance" means an advance by a Bank to the
Borrower as part of an Auction Borrowing resulting from the
auction bidding procedure described in Section 2.03, and refers
to a Fixed Rate Auction Advance or a Eurodollar Rate Auction
Advance.
"Auction Borrowing" means a Borrowing consisting of
simultaneous Auction Advances of the same Type from each of the
Banks whose offer to make an Auction Advance as part of such
Borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"Auction Reduction" means, as to any Bank as at any
date, an amount equal to such Bank's pro rata (in accordance with
the Commitments) share of the aggregate amount of all Auction
Advances outstanding on such date (giving effect to the payment
of any Auction Advances to be made on such date).
"Borrowing" means a Contract Borrowing or an Auction
Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City and, if
the applicable Business Day relates to any Eurodollar Rate
Advances, on which dealings in dollar deposits are carried on in
the London interbank market.
"CD Lending Office" means, with respect to any Bank,
the office or affiliate of such Bank specified as its "CD Lending
Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Bank (or,
if no such office or affiliate is specified, its Domestic Lending
Office), or such other office or affiliate of such Bank as such
Bank may from time to time specify to the Borrower and the
Administrative Agent.
"Chemical Bank" means Chemical Bank, a New York banking
corporation, and its successors.
"Closing Date" means the date of this Agreement.
"CNW" means Chicago and North Western Transportation
Company, a Delaware corporation.
"Co-Agents" means, collectively, the Syndication Agent,
the Documentation Agent and the Administrative Agent.
"Code" means the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commitment" has the meaning specified in
Section 2.01(a).
"Contract Advance" means an advance by a Bank to the
Borrower as part of a Contract Borrowing and refers to an
Adjusted CD Rate Advance, an Alternate Base Rate Advance or a
Eurodollar Rate Contract Advance.
"Contract Borrowing" means a Borrowing consisting of
simultaneous Contract Advances of the same Type made ratably by
all of the Banks pursuant to Section 2.01(a).
"Debt" means (i) indebtedness for borrowed money,
(ii) obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations to pay the deferred
purchase price of property (excluding obligations under
agreements for the purchase of goods in the normal course of
business, but including obligations under agreements relating to
the issuance of performance letters of credit or acceptance
financing), (iv) obligations as lessee under leases which shall
have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (v)
obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iv) above and (vi)
liabilities in respect of unfunded vested benefits under Plans
covered by Title IV of ERISA; provided, however, that (x) for the
purposes of Section 5.02(a), "Debt" means only indebtedness for
borrowed money (however evidenced) and (y) for the purposes of
Section 6.01(e), "Debt" means only (1) the obligations described
in clauses (i), (ii) and (iii) above and (2) the obligations
described in clause (v) above (to the extent such obligations
relate to Debt described in clause (i) or (ii) above).
"Default" means any condition or event which, after
notice or lapse of time, or both, would constitute an Event of
Default.
"Domestic Lending Office" means, with respect to any
Bank, the office or affiliate of such Bank specified as its
"Domestic Lending Office" opposite its name on Schedule I hereto
or in the Assignment and Acceptance pursuant to which it became a
Bank, or such other office or affiliate of such Bank as such Bank
may from time to time specify to the Borrower and the
Administrative Agent.
"Domestic Reserve Percentage" means, for any Interest
Period, the reserve percentage applicable on the first day of
such Interest Period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with deposits exceeding
one billion dollars with respect to liabilities consisting of or
including (among other liabilities) U.S. dollar nonpersonal time
deposits in the United States with a maturity equal to such
Interest Period.
"Eligible Assignee" means:
(a) any of the following entities approved in writing
by the Borrower in its sole discretion and notified to the
Administrative Agent, and then only to the extent of a proposed
assignment approved in writing by the Borrower in its sole
discretion and notified to the Administrative Agent: (i) a
commercial bank organized under the laws of the United States, or
any state thereof, and having total assets in excess of
$3,000,000,000 and a combined capital and surplus of at least
$150,000,000; (ii) a commercial bank organized under the laws of
any other country which is a member of the OECD, or a political
subdivision of any such country, and having total assets in
excess of $3,000,000,000 and a combined capital and surplus of at
least $150,000,000, provided that such bank is acting through a
branch or agency located in the United States, in the country in
which it is organized or in another country which is also a
member of the OECD; and (iii) the central bank of any country
which is a member of the OECD; and
(b) an affiliate of the assigning Bank (for which
purposes "affiliate" means a Person controlling, controlled by or
under common control with such assigning Bank).
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) which is a member of a group of which the
Borrower is a member and which is under common control within the
meaning of the regulations under Section 414 of the Code.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System (or any successor regulation), as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Bank, the office or affiliate of such Bank specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it
became a Bank (or, if no such office or affiliate is specified,
its Domestic Lending Office), or such other office or affiliate
of such Bank as such Bank may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the average of the rates at which deposits in U.S.
dollars in immediately available funds approximately equal in
principal amount to (i) in the case of a Contract Borrowing, the
portion of such Eurodollar Rate Contract Advance of the Bank
serving as Administrative Agent and (ii) in the case of an
Auction Borrowing, a principal amount that would have been the
portion of such Auction Borrowing of the Bank serving as
Administrative Agent had such Auction Borrowing been a Contract
Borrowing, and for a maturity comparable to (a) in the case of a
Contract Borrowing, the Interest Period then applicable to such
Contract Advance and (b) in the case of an Auction Borrowing, the
maturity of such Auction Advance, are offered to the principal
London offices of the Reference Banks (or if any Reference Bank
does not at the time maintain a London office, the principal
London office of any affiliate of such Reference Bank) in the
London interbank market at approximately 11:00 a.m. (London time)
two Business Days prior to (x) the commencement of the Interest
Period then applicable to such Contract Advance or (y) the making
of such Auction Advance, as the case may be.
"Eurodollar Rate Advance" means any Eurodollar Rate
Contract Advance or Eurodollar Rate Auction Advance.
"Eurodollar Rate Auction Advance" means an Auction
Advance which bears interest based on the Eurodollar Rate.
"Eurodollar Rate Contract Advance" means a Contract
Advance which bears interest based on the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" of any Bank for
any Eurodollar Rate Advance means the reserve percentage
applicable to such Bank on (i) in the case of a Contract Advance,
the first day of the Interest Period then applicable to such
Contract Advance and (ii) in the case of an Auction Advance, the
date of such Auction Advance, under regulations issued from time
to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the reserve requirement
(including, without limitation, any emergency, supplemental or
other marginal reserve requirement) under Regulation D
promulgated by the Board of Governors of the Federal Reserve
System, or any successor or supplemental regulations, then
applicable to such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period or the term of such Auction
Advance, as the case may be.
"Events of Default" has the meaning specified in
Section 6.01.
"Financial Officer" of any corporation shall mean the
chief financial officer, principal accounting officer, Treasurer
or Controller of such corporation.
"Fixed Rate" means an interest rate per annum
(expressed in the form of a decimal to no more than four decimal
places) specified by a Bank making an Auction Advance under the
auction bidding procedure described in Section 2.03.
"Fixed Rate Auction Advance" means an Auction Advance
which bears interest based on the Fixed Rate.
"Interest Period" means, for each Contract Advance
comprising part of the same Contract Borrowing, the period
commencing on the date of such Contract Advance or on the last
day of the immediately preceding Interest Period applicable to
such Contract Advance, as the case may be, and ending on the last
day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period
shall be (a) in the case of an Alternate Base Rate Advance, until
the next succeeding March 31, June 30, September 30 or
December 31, (b) in the case of an Adjusted CD Rate Advance, 30,
60, 90 or 180 days and (c) in the case of a Eurodollar Rate
Contract Advance, 1 month or 2, 3 or 6 months, as the Borrower
may select (in the case of clause (b) or (c)) by notice to the
Administrative Agent pursuant to Section 2.02(a); provided,
however, that:
(i) Interest Periods commencing on the same date for
Contract Advances comprising part of the same Contract
Borrowing shall be of the same duration;
(ii) subject to clause (iii) below, whenever the last
day of any Interest Period would otherwise occur on a day
other than a Business Day in both New York City and London,
the last day of such Interest Period shall be extended to
occur on the next succeeding Business Day in both such
cities, provided, in the case of any Interest Period for a
Eurodollar Rate Contract Advance, that if such extension
would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business
Day in both such cities; and
(iii) no Interest Period shall end on a date later than
the Maturity Date.
"Majority Banks" means at any time Banks that in the
aggregate (a) represent at least 66-2/3% of the Commitments and
(b) after the expiry or termination of the Commitments, represent
at least 66-2/3% of the aggregate unpaid principal amount of the
Advances and Special Rate Loans.
"Margin Stock" means "margin stock" within the meaning
of Regulation U.
"Material Plan" means either (i) a Plan under which the
present value of the vested benefits exceeds the fair market
value of the assets of such Plan allocable to such benefits by
more than $20,000,000 or (ii) a Plan whose assets have a market
value in excess of $100,000,000.
"Maturity Date" means the date 364 days after the
Closing Date; provided that if such date is not a Business Day,
the Maturity Date shall be the immediately preceding Business
Day.
"Merger Agreement" means the Agreement and Plan of
Merger, dated as of March 16, 1995, by and among the Borrower, UP
Rail, Inc. and CNW, as from time to time amended (without
prejudice to Section 5.02(f)).
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which the Borrower or
any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding three plan
years made or accrued an obligation to make contributions.
"Notice of Contract Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Auction Borrowing" has the meaning specified
in Section 2.03(a).
"$1,100,000,000 Agreement" means the $1,100,000,000
Revolving Credit Agreement, dated as of April 11, 1995, among the
Borrower, the banks named therein (which include certain of the
Banks), the co-arrangers, syndication agent and documentation
agent named therein and Chemical Bank, as administrative agent
for said banks, as from time to time amended.
"$1,400,000,000 Credit Agreement" means the
$1,400,000,000 Revolving Credit Agreement, dated as of March 2,
1993, among the Borrower, the banks named therein (which include
certain of the Banks), the co-agents named therein and Chemical
Bank, as administrative agent for said banks, as from time to
time amended.
"OECD" means the Organization for Economic Cooperation
and Development.
"Participating Bank" has the meaning specified in
Section 2.03(a)(v).
"PBGC" means the Pension Benefit Guaranty Corporation
and any entity succeeding to any or all of its functions under
ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) maintained for employees of the Borrower or
any ERISA Affiliate and covered by Title IV of ERISA.
"Railroads" means Union Pacific Railroad Company,
Missouri Pacific Railroad Company, and, after substantially all
shares of the capital stock of CNW (or the surviving corporation
pursuant to the Merger Agreement) shall have been acquired
(directly or indirectly) by the Borrower pursuant to the approval
or exemption (if required) of the Interstate Commerce Commission
(or any successor agency having jurisdiction), Chicago and North
Western Railway Company and Western Railroad Properties,
Incorporated, in each case together with their respective
successors.
"Reference Banks" means Chemical Bank, Citibank, N.A.
and Morgan Guaranty Trust Company of New York, and such other
additional or substitute financial institutions as may be agreed
to by the Borrower, the Administrative Agent and the Majority
Banks from time to time.
"Register" has the meaning specified in
Section 8.07(c).
"Regulation U" means Regulation U issued by the Board
of Governors of the Federal Reserve System, as from time to time
amended.
"Reportable Event" means an event described in Section
4043(b) of ERISA with respect to which the 30-day notice
requirement has not been waived by the PBGC.
"Special Rate Loan" means any loan made by a Bank to
the Borrower pursuant to Section 2.01(b).
"Special Rate Loan Reduction" means, as to any Bank as
at any date, an amount equal to such Bank's pro rata (in
accordance with the Commitments) share of the aggregate amount of
all Special Rate Loans outstanding on such date (giving effect to
the payment of any Special Rate Loans to be made on such date).
"Subsidiary" of a Person means any corporation or other
similar entity of which more than 50% of the outstanding capital
stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation or entity (irrespective of
whether or not at the time capital stock of any other class or
classes of such corporation or entity shall or might have voting
power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Tender Offer" means the offer by UP Rail, Inc., a Utah
corporation and wholly owned Subsidiary of the Borrower, to
purchase for cash all of the shares of common stock of CNW not
otherwise owned by the Borrower or any of its affiliates, dated
March 23, 1995, as from time to time amended (without prejudice
to Section 5.02(f)).
"Tender Offer Materials" means, collectively, (i) the
Offer to Purchase for Cash All Outstanding Shares of Common Stock
of Chicago and North Western Transportation Company at $35.00 Net
Per Share by UP Rail, Inc. dated March 23, 1995, (ii) the related
Letter of Transmittal and (iii) the Tender Offer Statement on
Schedule 14D-1 with respect to the Tender Offer filed with the
Securities and Exchange Commission, as any of the same may be
from time to time amended or extended.
"Termination Date" means the Maturity Date or the
earlier date of termination in whole of the Commitments pursuant
to Section 2.06 or 6.01.
"Termination Event" means (i) a "Reportable Event"
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a "Reportable Event" not subject to the
provision for 30-day notice to the PBGC under such regulations),
or (ii) the withdrawal of the Borrower or any of its ERISA
Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA,
or (iii) the filing of a notice of intent to terminate a Plan or
the treatment of a Plan amendment as a termination under Section
4041 of ERISA, or (iv) the institution of proceedings to
terminate a Plan by the PBGC, or (v) any other event or condition
which might constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to
administer, any Plan.
"Type", when used in respect of any Advance or
Borrowing, refers to the Rate by reference to which interest on
such Advance or on the Advances comprising such Borrowing is
determined. For purposes hereof, "Rate" shall include the
Eurodollar Rate, the Adjusted CD Rate, the Alternate Base Rate
and the Fixed Rate.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms
not specifically defined herein shall be construed in accordance
with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements
referred to in Section 4.01(e).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND SPECIAL RATE LOANS
SECTION 2.01. The Contract Advances; Special Rate
Loans. (a) Each Bank severally agrees, on the terms and
conditions hereinafter set forth, to make Contract Advances to
the Borrower from time to time on any Business Day during the
period from the Closing Date until the Termination Date in an
aggregate amount not to exceed at any time outstanding the
excess, if any, of (i) the amount set opposite such Bank's name
on the signature pages to this Agreement, as such amount may be
reduced pursuant to Section 2.06 or increased pursuant to
Section 2.17 or reduced or increased pursuant to Section 8.07
(such Bank's obligation to make such Advances being hereinafter
referred to as such Bank's "Commitment") over (ii) the aggregate
amount of (x) such Bank's Special Rate Loan Reduction, if any,
and (y) such Bank's Auction Reduction, if any; provided, however,
that at no time shall the aggregate outstanding principal amount
of Contract Advances, Auction Advances and Special Rate Loans
exceed the aggregate amount of the Commitments. Each Contract
Borrowing shall be in an aggregate amount not less than
$10,000,000 (subject to the terms of this Section 2.01(a)) or an
integral multiple of $1,000,000 in excess thereof and shall
consist of Contract Advances of the same Type made on the same
day by the Banks ratably according to their respective
Commitments.
(b) Upon the request of the Borrower, each Bank may,
in its sole discretion, from time to time on any Business Day
during the period from the Closing Date until the Termination
Date, extend loans to the Borrower in an aggregate amount not
less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, at an interest rate and upon repayment terms to
be mutually agreed upon between such Bank and the Borrower
("Special Rate Loans"). The amount of any Special Rate Loan made
by a Bank may exceed such Bank's Commitment; provided that at no
time shall the aggregate amount of Contract Advances, Auction
Advances and Special Rate Loans outstanding exceed the aggregate
amount of the Commitments. Notwithstanding any other provision
of this Agreement, (i) any Special Rate Loan shall be made by a
Bank directly to the Borrower; (ii) all payments in respect of
any Special Rate Loan shall be made by the Borrower directly to
the Bank which made such loan; (iii) Special Rate Loans need not
be made on a pro rata basis among the Banks; and (iv) each
Special Rate Loan shall be entitled to the benefits of the
provisions contained in Articles V and VI and Sections 8.05 and
8.07 hereof unless otherwise agreed by the Borrower and the Bank
which made such loan with written notice to the Administrative
Agent. On each date when any Bank makes a Special Rate Loan, the
Borrower and such Bank shall notify the Administrative Agent
thereof (and the Administrative Agent shall promptly notify the
other Banks), specifying the principal amount of such Special
Rate Loan, the interest rate thereon, the repayment terms and the
maturity thereof.
(c) Within the limits and on the conditions set forth
in this Section 2.01, the Borrower may from time to time borrow
under this Section 2.01, repay pursuant to Sections 2.07(a) and
2.07(b), as appropriate, prepay under Section 2.07(d) and
reborrow under this Section 2.01 and borrow under Section 2.03.
SECTION 2.02. Making the Contract Advances. (a) Each
Contract Borrowing shall be made on notice, given (i) in the case
of a Borrowing consisting of Alternate Base Rate Advances, not
later than 10:30 a.m. (New York City time) on the day of the
proposed Borrowing; (ii) in the case of a Borrowing consisting of
Adjusted CD Rate Advances, not later than 10:30 a.m. (New York
City time) on the second Business Day prior to the day of the
proposed Borrowing; and (iii) in the case of a Borrowing
consisting of Eurodollar Rate Contract Advances, not later than
10:30 a.m. (New York City time) on the third Business Day prior
to the date of the proposed Borrowing, by the Borrower to the
Administrative Agent, which shall give to each Bank prompt notice
thereof by cable or telecopy. Each such notice of a Contract
Borrowing (a "Notice of Contract Borrowing") shall be in
substantially the form of Exhibit A-1 hereto, specifying therein
the requested (i) date of such Contract Borrowing, (ii) Type of
Contract Advances comprising such Contract Borrowing,
(iii) aggregate amount of such Contract Borrowing and
(iv) Interest Period. Each Bank shall, before 12:00 noon (New
York City time) on the date of any such Contract Borrowing, make
available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 8.02,
in same-day funds, such Bank's ratable portion of such Contract
Borrowing. Upon the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's aforesaid
address.
(b) Each Notice of Contract Borrowing shall be
irrevocable and binding on the Borrower. In the case of any
Contract Borrowing which the related Notice of Contract Borrowing
specifies is to be comprised of Eurodollar Rate Contract Advances
or Adjusted CD Rate Advances, the Borrower shall indemnify each
Bank against any loss, cost or expense incurred by such Bank as a
result of any failure by the Borrower to complete such Borrowing
(whether or not due to a failure to fulfill on or before the date
specified in such Notice of Contract Borrowing the applicable
conditions set forth in Article III), such losses, costs and
expenses to include, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund the Contract Advance to be made by
such Bank as part of such Contract Borrowing when such Contract
Advance, as a result of such failure, is not made on such date.
(c) Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Contract
Borrowing that such Bank will not make available to the
Administrative Agent such Bank's ratable portion of such Contract
Borrowing, the Administrative Agent may assume that such Bank has
made such portion available to the Administrative Agent on the
date of such Contract Borrowing in accordance with subsection (a)
of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such
Bank shall not have so made such ratable portion available to the
Administrative Agent, such Bank and the Borrower severally agree
to repay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each
day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable
at the time to Contract Advances comprising such Contract
Borrowing and (ii) in the case of such Bank, an interest rate
equal at all times to the Federal Funds Effective Rate (as
defined in the definition of Alternate Base Rate in
Section 1.01). If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Contract Advance as part of such Contract
Borrowing for purposes of this Agreement.
(d) The failure of any Bank to make the Contract
Advance to be made by it as part of any Contract Borrowing shall
not relieve any other Bank of its obligation, if any, hereunder
to make its Contract Advance on the date of such Contract
Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Contract Advance to be made by such
other Bank on the date of any Contract Borrowing.
SECTION 2.03. The Auction Advances. (a) Each Bank
severally agrees that the Borrower may make Auction Borrowings
under this Section 2.03 from time to time on any Business Day
during the period from the Closing Date until the Termination
Date, in each case on the terms and conditions hereinafter set
forth; provided, however, that at no time shall the aggregate
amount of Contract Advances, Auction Advances and Special Rate
Loans outstanding exceed the aggregate amount of the Commitments.
Each Auction Borrowing shall consist of Auction Advances of the
same Type made on the same day.
(i) The Borrower may request an Auction Borrowing
under this Section 2.03 by delivering to the Administrative
Agent (A) in the case of a Borrowing consisting of Fixed
Rate Auction Advances, by not later than 10:00 a.m. (New
York City time) one day prior to the day of the proposed
Auction Borrowing, and (B) in the case of a Borrowing
consisting of Eurodollar Rate Auction Advances, by not later
than 10:00 a.m. (New York City time) on the fourth Business
Day prior to the date of the proposed Auction Borrowing, a
notice of an Auction Borrowing (a "Notice of Auction
Borrowing"), in substantially the form of Exhibit A-2 hereto
specifying the proposed (1) date of such Auction Borrowing,
(2) Type of Auction Advances comprising such Auction
Borrowing, (3) aggregate amount (which shall not be less
than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof) of such Auction Borrowing, (4) maturity date
for repayment of each Auction Advance to be made as part of
such Auction Borrowing (which maturity date shall be, in the
case of a Fixed Rate Auction Borrowing, not earlier than
seven days after the date of such Borrowing, and, in the
case of a Eurodollar Rate Auction Borrowing, not later than
1 month or 2, 3 or 6 months after the date of such
Borrowing, as the Borrower shall elect) and (5) any other
terms to be applicable to such Auction Borrowing. The
Administrative Agent shall in turn promptly notify (by cable
or telecopy) each Bank of each request for an Auction
Borrowing received by it from the Borrower and of the terms
contained in such Notice of Auction Borrowing.
(ii) Each Bank shall, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Auction Advances to the Borrower as part of such proposed
Auction Borrowing at a rate or rates of interest specified
by such Bank in its sole discretion, by notifying (by
telecopy, cable or telephone (in the case of telephone,
immediately confirmed by telecopy)) the Administrative Agent
(which shall give prompt notice thereof to the Borrower),
(A) in the case of a Fixed Rate Auction Borrowing, before
10:00 a.m. (New York City time) on the date of such proposed
Auction Borrowing specified in the Notice of Auction
Borrowing delivered with respect thereto, and (B) in the
case of a Eurodollar Rate Auction Borrowing, before
10:00 a.m. (New York City time) on the third Business Day
prior to the date of such proposed Auction Borrowing
specified in the Notice of Auction Borrowing delivered with
respect thereto, of the maximum amount of each Auction
Advance which such Bank would be willing to make as part of
such proposed Auction Borrowing (which amount may, subject
to the proviso to the first sentence of this Section
2.03(a), exceed such Bank's Commitment), the rate or rates
of interest therefor (and whether reserves are included
therein) and such Bank's Applicable Lending Office with
respect to each such Auction Advance and any other terms and
conditions required by such Bank; provided that, if the Bank
then acting as Administrative Agent shall, in its sole
discretion, elect to make any such offer, it shall notify
the Borrower of such offer before 9:45 a.m. (New York City
time) on the date specified herein for notice of offers by
the other Banks. If any Bank shall fail to notify the
Administrative Agent, before the time specified herein for
notice of offers, that it elects to make such an offer, such
Bank shall be deemed to have elected not to make such an
offer, and such Bank shall not be obligated or entitled to,
and shall not, make any Auction Advance as part of such
Auction Borrowing. If any Bank shall provide telephonic
notice to the Administrative Agent of its election to make
an offer, but such telephonic notice has not been confirmed
by telecopy to the Administrative Agent at or before the
time specified herein for notice of offers, the
Administrative Agent may, in its sole discretion and without
liability to such Bank or the Borrower, elect whether or not
to provide notice thereof to the Borrower.
(iii) The Borrower shall, in turn, (A) in the case of a
Fixed Rate Auction Borrowing, before 11:00 a.m. (New York
City time) on the date of such proposed Auction Borrowing
specified in the Notice of Auction Borrowing delivered with
respect thereto, and (B) in the case of a Eurodollar Rate
Auction Borrowing, before 11:00 a.m. (New York City time) on
the third Business Day prior to the date of such proposed
Auction Borrowing specified in the Notice of Auction
Borrowing delivered with respect thereto, either:
(x) cancel such proposed Auction Borrowing by
giving the Administrative Agent notice to that effect,
or
(y) accept one or more of the offers made by any
Bank or Banks pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Administrative
Agent of the amount of each Auction Advance (which
amount shall be equal to or greater than $1,000,000,
and equal to or less than the maximum amount offered by
such Bank, notified to the Borrower by the
Administrative Agent on behalf of such Bank for such
Auction Advance pursuant to paragraph (ii) above) to be
made by each Bank as part of such Auction Borrowing,
and reject any remaining offers made by Banks pursuant
to paragraph (ii) above, by giving the Administrative
Agent notice to that effect; provided, however, that
the aggregate amount of such offers accepted by the
Borrower shall be equal at least to $10,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(iv) If the Borrower notifies the Administrative Agent
that such Auction Borrowing is canceled pursuant to
paragraph (iii)(x) above, the Administrative Agent shall
give prompt notice (by cable or telecopy) thereof to the
Banks, and such Auction Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Bank or Banks pursuant to paragraph (iii)(y)
above, such offer or offers and the Notice of Auction
Borrowing in respect thereof shall constitute a supplement
to this Agreement in respect of such Auction Borrowing and
the Auction Advances made pursuant thereto, and the
Administrative Agent shall in turn promptly notify (A) each
Bank that has made an offer as described in paragraph (ii)
above of the date and aggregate amount of such Auction
Borrowing, the interest rate thereon and whether or not any
offer or offers made by such Bank pursuant to paragraph (ii)
above have been accepted by the Borrower and (B) each Bank
that is to make an Auction Advance as part of such Auction
Borrowing (a "Participating Bank" as to such Auction
Borrowing) of the amount of each Auction Advance to be made
by such Bank as part of such Auction Borrowing and the
maturity date for the repayment of each such Auction Advance
(together with a confirmation of the Administrative Agent's
understanding of the interest rate and any other terms
applicable to each such Auction Advance; the Administrative
Agent shall assume, unless notified by such Bank to the
contrary, that its understanding of such information is
correct). Each such Participating Bank shall, before 12:00
noon (New York City time) on the date of such Auction
Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding
sentence, make available for the account of its Applicable
Lending Office to the Administrative Agent at its address
referred to in Section 8.02 such Bank's portion of such
Auction Borrowing, in same-day funds. Upon fulfillment of
the applicable conditions set forth in Article III and after
receipt by the Administrative Agent of such funds, the
Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
Promptly after each Auction Borrowing, the Administrative
Agent will notify each Bank of the amount of the Auction
Borrowing, such Bank's Auction Reduction resulting therefrom
and the date upon which such Auction Reduction commenced and
is anticipated to terminate.
(b) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time borrow
under this Section 2.03, repay pursuant to Section 2.07(c),
prepay under Section 2.07(d) and reborrow under this Section 2.03
and borrow under Section 2.01.
SECTION 2.04. Conversion and Continuation of Contract
Borrowings. The Borrower shall have the right at any time upon
prior irrevocable notice to the Administrative Agent (i) not
later than 12:00 noon (New York City time), one Business Day
prior to conversion, to convert any Borrowing consisting of
Eurodollar Rate Contract Advances or Adjusted CD Rate Advances
into a Borrowing consisting of Alternate Base Rate Advances, (ii)
not later than 10:00 a.m. (New York City time), two Business Days
prior to conversion or continuation, to convert any Borrowing
consisting of Eurodollar Rate Contract Advances or Alternate Base
Rate Advances into a Borrowing consisting of Adjusted CD Rate
Advances or to continue any Borrowing consisting of Adjusted CD
Rate Advances for an additional Interest Period, (iii) not later
than 10:00 a.m. (New York City time), three Business Days prior
to conversion or continuation, to convert any Borrowing
consisting of Alternate Base Rate Advances or Adjusted CD Rate
Advances into a Borrowing consisting of Eurodollar Rate Contract
Advances or to continue any Borrowing consisting of Eurodollar
Rate Contract Advances for an additional Interest Period,
(iv) not later than 10:00 a.m. (New York City time), three
Business Days prior to conversion, to convert the Interest Period
with respect to any Borrowing consisting of Eurodollar Rate
Contract Advances to another permissible Interest Period, and
(v) not later than 10:00 a.m. (New York City time), two Business
Days prior to conversion, to convert the Interest Period with
respect to any Borrowing consisting of Adjusted CD Rate Advances
to another permissible Interest Period, subject in each case to
the following:
(a) each conversion or continuation shall be made pro
rata among the Banks in accordance with the respective
principal amounts of the Advances comprising the converted
or continued Contract Borrowing;
(b) if less than all the outstanding principal amount
of any Contract Borrowing shall be converted or continued,
the aggregate principal amount of such Contract Borrowing
converted or continued shall be an amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof;
(c) accrued interest on an Advance (or portion
thereof) being converted shall be paid by the Borrower at
the time of conversion;
(d) if any Borrowing consisting of Eurodollar Rate
Contract Advances or Adjusted CD Rate Advances is converted
at a time other than the end of the Interest Period
applicable thereto, the Borrower shall pay, upon demand, any
amounts due to the Banks pursuant to Section 8.04(b) as a
result of such conversion;
(e) any portion of a Contract Borrowing maturing or
required to be repaid in less than one month may not be
converted into or continued as a Borrowing consisting of
Eurodollar Rate Contract Advances;
(f) any portion of a Borrowing maturing or required to
be repaid in less than 30 days may not be converted into or
continued as a Borrowing consisting of Adjusted CD Rate
Advances;
(g) any portion of a Borrowing consisting of
Eurodollar Rate Contract Advances or Adjusted CD Rate
Advances which cannot be converted into or continued as such
by reason of clauses (e) and (f) above shall be
automatically converted at the end of the Interest Period in
effect for such Borrowing into a Borrowing consisting of
Alternate Base Rate Advances; and
(h) no Interest Period may be selected for any
Borrowing consisting of Eurodollar Rate Contract Advances or
Adjusted CD Rate Advances that would end later than the
Maturity Date.
Each notice pursuant to this Section 2.04 shall be
irrevocable and shall refer to this Agreement and specify (i) the
identity and amount of the Contract Borrowing that the Borrower
requests be converted or continued, (ii) whether such Contract
Borrowing is to be converted to or continued as a Borrowing
consisting of Eurodollar Rate Contract Advances, Adjusted CD Rate
Advances or Alternate Base Rate Advances, (iii) if such notice
requests a conversion, the date of such conversion (which shall
be a Business Day) and (iv) if such Contract Borrowing is to be
converted to or continued as a Borrowing consisting of Eurodollar
Rate Contract Advances or Adjusted CD Rate Advances, the Interest
Period with respect thereto. If no Interest Period is specified
in any such notice with respect to any conversion to or
continuation as a Borrowing consisting of Eurodollar Rate
Contract Advances or Adjusted CD Rate Advances, the Borrower
shall be deemed to have selected an Interest Period of one
month's duration, in the case of a Borrowing consisting of
Eurodollar Rate Contract Advances, or 30 days' duration, in the
case of a Borrowing consisting of Adjusted CD Rate Advances. The
Administrative Agent shall advise the other Banks of any notice
given pursuant to this Section 2.04 and of each Bank's portion of
any converted or continued Contract Borrowing. If the Borrower
shall not have given notice in accordance with this Section 2.04
to continue any Contract Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance
with this Section 2.04 to convert such Contract Borrowing), such
Contract Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as a
Borrowing consisting of Alternate Base Rate Advances.
SECTION 2.05. Fees. The Borrower agrees to pay to
each Bank, through the Administrative Agent, a facility fee equal
to the Applicable Fee Percentage multiplied by the daily average
amount of the Commitment of such Bank, whether used or unused,
during the preceding quarter (or shorter period commencing with
the Closing Date or ending with the Termination Date), payable in
arrears on the last day of each March, June, September and
December during the term of the Commitments and on the
Termination Date.
SECTION 2.06. Optional Reduction of the Commitments.
The Borrower shall have the right, upon at least two Business
Days' irrevocable notice to the Administrative Agent, to
terminate in whole or reduce ratably in part the respective
Commitments of the Banks; provided, however, that (i) each
partial reduction shall be in the aggregate amount of $10,000,000
or in an integral multiple of $1,000,000 in excess thereof and
(ii) no such termination or reduction shall be made which would
reduce the Commitments to an amount less than the aggregate
outstanding principal amount of the Advances and Special Rate
Loans. The Administrative Agent shall promptly thereafter notify
each Bank of such termination or reduction.
SECTION 2.07. Repayment of Advances and Special Rate
Loans; Prepayment. (a) The Borrower shall repay to the
Administrative Agent for the account of each Bank the principal
amount of each Contract Advance made by each Bank on the Maturity
Date.
(b) The Borrower shall repay to each Bank making a
Special Rate Loan the principal amount of such Special Rate Loan
on the date when due (as agreed by the Borrower and the Bank
making the relevant Special Rate Loan in accordance with
Section 2.01(b)).
(c) The Borrower shall repay to the Administrative
Agent for the account of each Participating Bank which has made
an Auction Advance on the maturity date of each Auction Advance
(such maturity date being that specified by the Borrower for
repayment of such Auction Advance in the Notice of Auction
Borrowing delivered with respect thereto) the then unpaid
principal amount of such Auction Advance.
(d) The Borrower may, on notice given to the
Administrative Agent (i) in the case of Alternate Base Rate
Advances, not later than 10:30 a.m. (New York City time) on the
day of the proposed prepayment, and (ii) in the case of Adjusted
CD Rate Advances and Eurodollar Rate Contract Advances, not later
than 10:30 a.m. (New York City time) on the second Business Day
prior to the day of the proposed prepayment, stating the proposed
date and aggregate principal amount of the prepayment, and if
such notice is given the Borrower shall, prepay the outstanding
principal amounts of the Contract Advances constituting part of
the same Contract Borrowing in whole or ratably in part;
provided, however, that any such partial prepayment shall be in
an aggregate principal amount not less than $10,000,000, and
provided, further, that any such prepayment of Adjusted CD Rate
Advances or Eurodollar Rate Contract Advances shall be subject to
the provisions of Section 8.04(b) hereof. The Borrower may not
(x) prepay any principal amount of any Auction Advance unless the
Participating Bank making such Auction Advance shall have
expressly agreed thereto or (y) prepay any principal amount of
any Special Rate Loan unless the Bank making such Special Rate
Loan shall have expressly agreed thereto. The Administrative
Agent shall promptly notify each Bank of any prepayments pursuant
to this Section 2.07(d) promptly after any such prepayment. The
Borrower shall have no right to prepay any principal amount of
any Advance except as expressly set forth in this
Section 2.07(d).
SECTION 2.08. Interest. The Borrower shall pay
interest on each Advance and Special Rate Loan made by each Bank
from the date of such Advance or Special Rate Loan, as the case
may be, until paid in full, at the following rates per annum:
(i) Contract Advances. If such Advance is a Contract
Advance, the Applicable Rate from time to time for such
Contract Advance from the date of such Advance until the
last day of the last Interest Period therefor, payable on
the last day of each Interest Period and, in the case of any
Interest Period longer than 90 days (in the case of Adjusted
CD Rate Advances) or three months (in the case of Eurodollar
Rate Contract Advances), on such 90th day or the last day of
such three-month period, as the case may be.
(ii) Auction Advances. If such Advance is an Auction
Advance, a rate per annum equal at all times from the date
of such Advance until the maturity thereof at the rate of
interest for such Auction Advance specified by the
Participating Bank making such Auction Advance in its notice
with respect thereto delivered pursuant to subsection
(a)(ii) of Section 2.03 above, payable on the proposed
maturity date specified by the Borrower for such Auction
Advance in the related Notice of Auction Borrowing delivered
pursuant to subsection (a)(i) of Section 2.03 above,
provided, that in the case of Advances with maturities of
greater than three months, interest shall be payable at the
end of each three-month period for such Advance.
(iii) Special Rate Loans. If such loan is a Special
Rate Loan, a rate per annum equal at all times as agreed to
between the Bank making such Special Rate Loan and the
Borrower at the time of the making of the Special Rate Loan
by such Bank in accordance with Section 2.01(b).
(iv) Default Amounts. In the case of any past-due
amounts of the principal of, or (to the fullest extent
permitted by law) interest on, any Advance or Special Rate
Loan, or any other amount payable under this Agreement, from
the date such amount becomes due until paid in full, payable
on demand, a rate per annum equal at all times to 2% above
the Alternate Base Rate in effect from time to time.
SECTION 2.09. Interest Rate Determination. Each
Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Adjusted
CD Rate or Eurodollar Rate, as applicable. If any one or more of
the Reference Banks shall not furnish such timely information to
the Administrative Agent for the purpose of determining any such
interest rate, the Administrative Agent shall determine such
interest rate on the basis of timely information furnished by the
remaining Reference Banks, subject, however, to Section 2.10(a)
hereof.
SECTION 2.10. Alternate Rate of Interest. (a) If
fewer than two Reference Banks furnish timely information to the
Administrative Agent for determining the Eurodollar Rate for any
Eurodollar Rate Advances or the Adjusted CD Rate for any Adjusted
CD Rate Advances comprising any requested Borrowing, the
Administrative Agent will notify the Banks and the Borrower
thereof, and the right of the Borrower to select Advances of such
Type for such Borrowing or any subsequent Borrowing shall be
suspended until the Administrative Agent shall notify the
Borrower and the Banks that the circumstances causing such
suspension no longer exist, and (i) any request by the Borrower
for a Eurodollar Rate Auction Advance shall be of no force and
effect and shall be denied by the Administrative Agent and (ii)
any request by the Borrower for a Eurodollar Rate Contract
Advance or an Adjusted CD Rate Advance, as the case may be, shall
be deemed to be a request for an Alternate Base Rate Advance; and
(b) If Banks having more than 66-2/3% of the
Commitments shall, at least one Business Day before the date of
any requested Borrowing, notify the Administrative Agent that the
Eurodollar Rate for any Eurodollar Rate Advances or the Adjusted
CD Rate for any Adjusted CD Rate Advances comprising such
Borrowing will not adequately reflect the cost to such Banks of
making or funding their respective Advances for such Borrowing,
the Administrative Agent will notify the Banks and the Borrower
thereof, and the right of the Borrower to select Advances of such
Type for such Borrowing or any subsequent Borrowing shall be
suspended until the Administrative Agent shall notify the
Borrower and the Banks that the circumstances causing such
suspension no longer exist, and (i) any request by the Borrower
for a Eurodollar Rate Auction Advance shall be of no force and
effect and shall be denied by the Administrative Agent and (ii)
any request by the Borrower for a Eurodollar Rate Contract
Advance or an Adjusted CD Rate Advance, as the case may be, shall
be deemed to be a request for an Alternate Base Rate Advance.
SECTION 2.11. Increased Costs; Increased Capital.
(a) If, due to either (i) the introduction after the date hereof
of or any change after the date hereof (other than any change by
way of imposition or increase of reserve requirements, in the
case of Adjusted CD Rate Advances, included in the determination
of the Domestic Reserve Percentage for such Advances or, in the
case of Eurodollar Rate Advances, included in the determination
of the Eurodollar Rate Reserve Percentage for such Advances) in
or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request received from any
central bank or other governmental authority after the date
hereof (whether or not having the force of law), there shall be
any increase in the cost to any Bank of agreeing to make or
making, funding or maintaining Adjusted CD Rate Advances or
Eurodollar Rate Advances, then the Borrower shall from time to
time, upon demand by such Bank (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the
account of such Bank additional amounts sufficient to compensate
such Bank for such increased cost. Increased costs shall not
include income, stamp or other taxes, imposts, duties, charges,
fees, deductions or withholdings imposed, levied, collected,
withheld or assessed by the United States of America or any
political subdivision or taxing authority thereof or therein
(including Puerto Rico) or of the country in which any Bank's
principal office or Applicable Lending Office may be located or
any political subdivision or taxing authority thereof or therein.
Each Bank agrees that, upon the occurrence of any event giving
rise to a demand under this subsection 2.11(a) with respect to
the Eurodollar Lending Office or the CD Lending Office of such
Bank, it will, if requested by the Borrower and to the extent
permitted by law or the relevant governmental authority, endeavor
in good faith and consistent with its internal policies to avoid
or minimize the increase in costs resulting from such event by
endeavoring to change its Eurodollar Lending Office or CD Lending
Office, as appropriate; provided, however, that such avoidance or
minimization can be made in such a manner that such Bank, in its
sole determination, suffers no economic, legal or regulatory
disadvantage. A certificate as to the amount of and specifying
in reasonable detail the basis for such increased cost, submitted
to the Borrower and the Administrative Agent by such Bank, shall
constitute such demand and shall, in the absence of manifest
error, be conclusive and binding for all purposes.
(b) If either (i) the introduction after the date
hereof of, or any change after the date hereof in or in the
interpretation of, any law or regulation or (ii) the compliance
by any Bank with any guideline or request received from any
central bank or other governmental authority after the date
hereof (whether or not having the force of law), affects or would
affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank
and such Bank determines that the amount of such capital is
increased by or based upon the existence of its Advances or
Special Rate Loans or Commitment, then the Borrower shall, from
time to time, upon demand by such Bank (with a copy of such
demand to the Administrative Agent), immediately pay to the
Administrative Agent for the account of such Bank additional
amounts sufficient to compensate such Bank to the extent that
such Bank determined such increase in capital to be allocable to
the existence of such Bank's Advances or Special Rate Loans or
Commitment. A certificate as to the amount of such increased
capital and specifying in reasonable detail the basis therefor,
submitted to the Borrower and the Administrative Agent by such
Bank, shall constitute such demand and shall, in the absence of
manifest error, be conclusive and binding for all purposes. Each
Bank shall use all reasonable efforts to mitigate the effect upon
the Borrower of any such increased capital requirement and shall
assess any cost related to such increased capital on a
nondiscriminatory basis among the Borrower and other borrowers of
such Bank to which it applies and such Bank shall not be entitled
to demand or be compensated for any increased capital requirement
unless it is, as a result of such law, regulation, guideline or
request, such Bank's policy generally to seek to exercise such
rights, where available, against other borrowers of such Bank.
(c) Notwithstanding the foregoing provisions of this
Section 2.11, (i) the Borrower shall not be required to reimburse
any Bank for any increased costs incurred more than three months
prior to the date that such Bank notifies the Borrower in writing
thereof and (ii) in the event any Bank makes an assignment of, or
grants a participation in, an Advance or Special Rate Loan or its
Commitment pursuant to Section 8.07, the Borrower shall not be
obligated to reimburse for increased costs with respect to such
Advance, Special Rate Loan or Commitment to the extent that the
aggregate amount thereof exceeds the aggregate amount for which
the Borrower would have been obligated (determined, in the case
of an assignment, on the basis of laws and regulations in effect
at the time of such assignment) if such Bank had not made such
assignment or granted such participation.
SECTION 2.12. Additional Interest on Eurodollar Rate
Advances. The Borrower shall pay to the Administrative Agent for
the account of each Bank any costs which such Bank determines are
attributable to such Bank's compliance with regulations of the
Board of Governors of the Federal Reserve System requiring the
maintenance of reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities. Such costs
shall be paid to the Administrative Agent for the account of such
Bank in the form of additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Bank, from the
date of such Advance until such principal amount is paid in full,
at an interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the
applicable period for such Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Bank for such
period, payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by such
Bank and notified to the Borrower and the Administrative Agent.
A certificate setting forth the amount of such additional
interest, submitted to the Borrower and the Administrative Agent
by such Bank, shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.13. Change in Legality. If any Bank shall,
at least three Business Days before the date of any requested
Borrowing consisting of Eurodollar Rate Advances or at least two
Business Days before the date of any requested Borrowing
consisting of Adjusted CD Rate Advances, notify the
Administrative Agent that the introduction of or any change in or
in the interpretation of any law or regulation makes it unlawful,
or that any central bank or other governmental authority asserts
that it is unlawful, for such Bank or its Applicable Lending
Office to perform its obligations hereunder to make, fund or
maintain Eurodollar Rate Advances or Adjusted CD Rate Advances
hereunder, the right of the Borrower to select Advances of such
Type from such Bank for such Borrowing or any subsequent
Borrowing shall be suspended until such Bank shall notify the
Administrative Agent that the circumstances causing such
suspension no longer exist; and during the period when such
obligation of such Bank is suspended, any Borrowing consisting of
Eurodollar Rate Advances or Adjusted CD Rate Advances, as the
case may be, shall not exceed the Commitments of the other Banks
less the aggregate amount of any Special Rate Loans and Auction
Advances then outstanding, and shall be made by the other Banks
pro rata according to their respective Commitments.
SECTION 2.14. Payments and Computations. (a) Except
as expressly provided in Section 2.01(b)(ii), the Borrower shall
make each payment hereunder from a bank account of the Borrower
located in the United States not later than 11:00 a.m. (New York
City time) on the day when due in U.S. dollars to the
Administrative Agent at its address referred to in Section 8.02
in same-day funds, without set-off or counterclaim. The
Administrative Agent will promptly thereafter cause to be
distributed like funds to the Banks entitled thereto for the
account of their respective Applicable Lending Offices, in each
case to be applied in accordance with the terms of this
Agreement.
(b) All computations of interest based on the
Alternate Base Rate shall be made by the Administrative Agent on
the basis of a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate (as defined in the
definition of Alternate Base Rate in Section 1.01) and on the
basis of a year of 360 days at all other times, and all
computations of fees and of interest based on the Adjusted CD
Rate, the Eurodollar Rate or the Fixed Rate shall be made by the
Administrative Agent, and all computations of interest pursuant
to Section 2.09 shall be made by the Reference Banks, on the
basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are
payable. Each determination by the Administrative Agent (or, in
the case of Section 2.09, by the Reference Banks) of an interest
rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(c) Whenever any payment hereunder shall be stated to
be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of
time shall be included in the computation of payment of interest
or fees, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any
payment is due to the Banks 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 Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent the Borrower shall not have so
made such payment in full to the Administrative Agent, each Bank
shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Effective Rate (as
defined in the definition of Alternate Base Rate in
Section 1.01).
(e) Each Bank shall maintain on its books a loan
account in the name of the Borrower in which shall be recorded
all Advances made by such Bank to the Borrower, the interest rate
and the maturity date of each such Advance and all payments of
principal and interest made by the Borrower with respect to such
Advances. The obligation of the Borrower to repay the Advances
made by each Bank and to pay interest thereon shall be evidenced
by the entries from time to time made in the loan account of such
Bank maintained pursuant to this Section 2.14(e); provided that
the failure to make an entry with respect to an Advance shall not
affect the obligations of the Borrower hereunder with respect to
such Advance. In case of any dispute, action or proceeding
relating to any Advance, the entries in such loan account shall
be prima facie evidence of the amount of such Advance and of any
amounts paid or payable with respect thereto.
(f) The Administrative Agent shall maintain on its
books a set of accounts in which shall be recorded all Advances
made by the Banks to the Borrower, the interest rates and
maturity dates of such Advances and all payments of principal and
interest made thereon. In case of any discrepancy between the
entries in the Administrative Agent's books and the entries in
any Bank's books, such Bank's records shall be considered
correct, in the absence of manifest error.
SECTION 2.15. Taxes on Payments. (a) All payments
made by the Borrower under this Agreement shall be made free and
clear of, and without reduction for or on account of, any income,
stamp or other taxes, imposts, duties, charges, fees, deductions
or withholdings, imposed, levied, collected, withheld or assessed
by the United States of America (or by any political subdivision
or taxing authority thereof or therein) as a result of (i) the
introduction after the date hereof of any law, regulation,
treaty, directive or guideline (whether or not having the force
of law), or (ii) any change after the date hereof in any law,
regulation, treaty, directive or guideline (whether or not having
the force of law), or (iii) any change after the date hereof in
the interpretation or application of any law, regulation, treaty,
directive or guideline (whether or not having the force of law)
or (iv) any such taxes, imposts, duties, charges, fees,
deductions or withholdings being imposed, levied, collected,
withheld or assessed at a greater rate than the rate that would
have been applicable had such an introduction or change not been
made, but only to the extent of the increase in such rate
("Withholding Taxes"). If any Withholding Taxes are required to
be withheld from any amounts payable to or for the account of any
Bank hereunder, the amounts so payable to or for the account of
such Bank shall be increased to the extent necessary to yield to
such Bank (after payment of all Withholding Taxes) interest or
any such other amounts payable hereunder at the rates or in the
amounts payable to or for the account of such Bank under this
Agreement prior to such introduction or change. Whenever any
Withholding Tax is payable by the Borrower, as promptly as
possible thereafter, the Borrower shall send to the
Administrative Agent, for the account of such Bank, a certified
copy of an original official receipt showing payment thereof. If
the Borrower fails to pay any Withholding Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent for the account of any Bank the required
receipts or other required documentary evidence, the Borrower
shall indemnify such Bank or the Administrative Agent for any
incremental taxes, interest or penalties that may become payable
by such Bank or the Administrative Agent as a result of any such
failure.
(b) At least four Business Days prior to the first
Borrowing or, if the first Borrowing does not occur within thirty
days after the date of execution of this Agreement, by the end of
such thirty day period, each Bank that is organized outside the
United States agrees that it will deliver to the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form 1001 (or such other documentation
or information as may, under applicable United States federal
income tax statutes or regulations, be required in order to claim
an exemption or reduction from United States income tax
withholding by reason of an applicable treaty with the United
States, such documentation or other information being hereafter
referred to as "Form 1001") or 4224 (or such other documentation
or information as may, under applicable United States federal
income tax statutes or regulations, be required in order to claim
an exemption from United States income tax withholding for income
that is effectively connected with the conduct of a trade or
business within the United States, such documentation or other
information being hereafter referred to as "Form 4224"), as the
case may be, indicating in each case that such Bank is either
entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes or, as the case may be, is subject to such limited
deduction or withholding as it is capable of recovering in full
from a source other than the Borrower. Each Bank which delivers
to the Borrower and the Administrative Agent a Form 1001 or 4224
pursuant to the next preceding sentence further undertakes to
deliver to the Borrower and the Administrative Agent two further
copies of the said Form 1001 or 4224, or successor applicable
form or certificate, as the case may be, as and when the previous
form filed by it hereunder shall expire or shall become
incomplete or inaccurate in any respect, unless in any of such
cases an event has occurred prior to the date on which any such
delivery would otherwise be required which renders such form
inapplicable.
(c) If at any time any Bank by reason of payment by
the Borrower of any Withholding Taxes obtains a credit against,
or return or reduction of, any tax payable by it, or any other
currently realized tax benefit, which it would not have enjoyed
but for such payment ("Tax Benefit"), such Bank shall thereupon
pay to the Borrower the amount which such Bank shall certify to
be the amount that, after payment, will leave such Bank in the
same economic position it would have been in had it received no
such Tax Benefit ("Equalization Amount"); provided, however, that
if such Bank shall subsequently determine that it has lost the
benefit of all or a portion of such Tax Benefit, the Borrower
shall promptly remit to such Bank the amount certified by such
Bank to be the amount necessary to restore such Bank to the
position it would have been in if no payment had been made
pursuant to this Section 2.15(c); provided, further, however,
that if such Bank shall be prevented by applicable law from
paying the Borrower all or any portion of the Equalization Amount
owing to the Borrower such payment need not be made to the extent
such Bank is so prevented and the amount not paid shall be
credited to the extent lawful against future payment owing to
such Bank; provided, further, however, that the aggregate of all
Equalization Amounts paid by any Bank shall in no event exceed
the aggregate of all amounts paid by the Borrower to such Bank in
respect of Withholding Taxes plus, in the case of a Tax Benefit
that occurs by reason of a refund, interest actually received
from the relevant taxing authority with respect to such refund.
A certificate submitted in good faith by the Bank pursuant to
this Section 2.15(c) shall be deemed conclusive absent manifest
error.
(d) In the event a Bank shall become aware that the
Borrower is required to pay any additional amount to it pursuant
to Section 2.15(a), such Bank shall promptly notify the
Administrative Agent and the Borrower of such fact and shall use
reasonable efforts, consistent with legal and regulatory
restrictions, to change the jurisdiction of its Applicable
Lending Office if the making of such change (i) would avoid the
need for or reduce the amount of any such additional amounts that
may thereafter accrue, (ii) would not, in the good faith
determination of such Bank, be disadvantageous for regulatory or
competitive reasons to such Bank and (iii) would not require such
Bank to incur any cost or forego any economic advantage for which
the Borrower shall not have agreed to reimburse and indemnify
such Bank.
(e) Notwithstanding the foregoing provisions of this
Section 2.15, in the event any Bank makes an assignment of, or
grants a participation in, an Advance or Special Rate Loan or its
Commitment pursuant to Section 8.07, the Borrower shall not be
obligated to pay any taxes, imposts, duties, charges, fees,
deductions or withholdings to the extent that the aggregate
amount thereof exceeds the aggregate amount for which the
Borrower would have been obligated (determined, in the case of an
assignment, on the basis of laws and regulations in effect at the
time of such assignment) if such Bank had not made such
assignment or granted such participation.
SECTION 2.16. Sharing of Payments, Etc. If any Bank
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of setoff or otherwise) on account of
the Contract Advances made by it (other than pursuant to
Sections 2.11, 2.12, 2.15, 2.17, 8.04 or 8.07(g) hereof) in
excess of its ratable share of payments on account of the
Contract Advances obtained by all the Banks, then such Bank shall
forthwith purchase from the other Banks through the
Administrative Agent such participations in the Contract Advances
made by them as shall be necessary to cause such purchasing Bank
to share the excess payment ratably with each of them; provided,
however, that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase
from each Bank shall be rescinded and such Bank shall repay to
the purchasing Bank the purchase price to the extent of such
recovery together with an amount equal to such Bank's ratable
share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so
recovered. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.16
may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to
such participation as fully as if such Bank were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.17. Removal of a Bank. The Borrower shall
have the right, by giving at least 15 Business Days' prior notice
in writing to the affected Bank and the Administrative Agent, at
any time when no Default or Event of Default has occurred and is
then continuing, to remove as a party hereto any Bank having a
credit rating of C/D (or its equivalent) or lower by Thomson
BankWatch, Inc. (or any successor thereto), such removal to be
effective as of the date specified in such notice from the
Borrower (a "Removal Date"), which date shall be the last day of
an Interest Period. On any Removal Date, the Borrower shall
repay all the outstanding Contract Advances, Special Rate Loans
and Auction Advances of the affected Bank, together with all
accrued interest, fees and all other amounts owing hereunder to
such Bank. Upon such Removal Date and receipt of the payment
referred to above, the Commitment of such affected Bank shall
terminate and such Bank shall cease thereafter to constitute a
Bank hereunder. The Borrower shall have the right to offer to
one or more Banks the right to increase their Commitments up to,
in the aggregate for all such increases, the Commitment of any
Bank which is removed pursuant to the foregoing provisions of
this Section 2.17 (such Commitment being herein called an
"Unallocated Commitment") effective on the relevant Removal Date,
it being understood that no Bank shall be obligated to increase
its Commitment in response to any such offer. The Borrower shall
also have the right to offer all or any portion of an Unallocated
Commitment to one or more commercial banks not parties hereto
having a credit rating higher than C/D (or its equivalent) by
Thomson BankWatch, Inc. (or any successor thereto), and, upon
each such bank's acceptance of such offer and execution and
delivery of an instrument agreeing to the terms and conditions
hereof, each such bank shall become a Bank hereunder with a
Commitment in an amount specified in such instrument. If the
Bank which is removed pursuant to this Section 2.17 is a
Reference Bank, the Administrative Agent, with the consent of the
Borrower (which shall not be unreasonably withheld), shall
appoint a new Reference Bank from among the Banks. The
obligations of the Borrower described in Sections 2.02(b), 2.11,
2.12, 2.15, 8.04 and 8.12 that arose prior to the date of removal
shall survive for the benefit of any Bank removed pursuant to
this Section 2.17 notwithstanding such removal.
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial
Borrowing. The obligation of each Bank to make an Advance on the
occasion of the initial Borrowing is subject to the following
conditions precedent (each of the documents referred to below to
be in form and substance satisfactory to the Administrative
Agent, dated a date on or within 10 days prior to the date of
such Borrowing and in sufficient copies for each Bank):
(a) The Administrative Agent shall have received, on
behalf of the Banks, certified copies of the resolutions of
the Board of Directors of the Borrower approving this
Agreement and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement.
(b) The Administrative Agent shall have received, on
behalf of the Banks, a certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized
to sign this Agreement and the other documents to be
delivered hereunder.
(c) The Administrative Agent shall have received, on
behalf of the Banks, a favorable opinion of the Senior Vice
President and General Counsel or Assistant General Counsel
of the Borrower, substantially in the form of Exhibit C
hereto and as to such other matters as any Bank through the
Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received, on
behalf of the Banks, a favorable opinion of Milbank, Tweed,
Hadley & McCloy, special New York counsel for the
Administrative Agent, substantially in the form of Exhibit D
hereto.
(e) The Borrower shall not have made any change in the
structure or terms of the Tender Offer disclosed to the
Banks prior to the Closing Date, except for changes that, in
the reasonable opinion of the Majority Banks, are not
materially adverse from the standpoint of the financing
contemplated hereby.
(f) The Borrower shall have certified to the
Administrative Agent that all material conditions to the
Tender Offer have been satisfied (without any waiver thereof
by the Borrower).
(g) The Merger Agreement shall be in substantially the
same form as provided to the Banks prior to the Closing
Date, except for amendments that, in the reasonable opinion
of the Majority Banks, are not materially adverse from the
standpoint of the financing contemplated hereby.
(h) The Borrower shall have paid all fees due and
payable as of or before the Closing Date to the Banks.
SECTION 3.02. Conditions Precedent to Each Borrowing.
The obligation of each Bank to make an Advance in connection with
any Borrowing shall be subject to the further conditions
precedent that on the date of such Borrowing the following
statements shall be true (and each of the giving of the
applicable Notice of Contract Borrowing or Notice of Auction
Borrowing and the acceptance by the Borrower of the proceeds of
such Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing such statements
are true):
(i) the representations and warranties contained in
Section 4.01 (excluding those contained in subsections (e)
and (f) thereof and, in the event of a Borrowing for general
corporate purposes, excluding those contained in
subsection (k) thereof) are correct on and as of the date of
such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date; and
(ii) no Default or Event of Default has occurred and is
continuing, or would result from such Borrowing or from the
application of the proceeds therefrom.
SECTION 3.03. Borrowings for General Corporate
Purposes. With respect to any Borrowing the proceeds of which
are to be used in whole or in part for the general corporate
purposes of the Borrower, the conditions precedent set forth in
paragraphs (e), (f) and (g) of Section 3.01 shall be deemed to
have been satisfied upon the consummation of the Tender Offer in
accordance with the terms and conditions hereof and thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Utah.
(b) The execution, delivery and performance by the
Borrower of this Agreement are within the Borrower's
corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's
charter or by-laws or (ii) any law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution,
delivery and performance by the Borrower of this Agreement
except such as have been duly obtained or made and are in
full force and effect.
(d) This Agreement is the legal, valid and binding
obligation of the Borrower enforceable against the Borrower
in accordance with its terms.
(e) The statement of consolidated financial position
of the Borrower and its consolidated Subsidiaries as at
December 31, 1994, and the related statements of
consolidated income and consolidated changes in common
stockholders' equity of the Borrower and its consolidated
Subsidiaries for the fiscal year then ended, copies of which
have been furnished to each Bank, fairly present the
financial condition of the Borrower and its consolidated
Subsidiaries as at such date and the results of the
operations of the Borrower and its consolidated Subsidiaries
for the period ended on such date, all in accordance with
generally accepted accounting principles consistently
applied, and since December 31, 1994, there has been no
material adverse change in such condition or operations.
(f) There is no pending or threatened action or
proceeding affecting the Borrower or any of its consolidated
Subsidiaries before any court, governmental agency or
arbitrator, (i) which purports to affect the legality,
validity or enforceability of this Agreement, or (ii) which
may materially adversely affect the consummation of the
Tender Offer, or (iii) except as set forth in the Borrower's
annual report on Form 10-K for the fiscal year ended
December 31, 1994 (a copy of which has been furnished to
each Bank), which may materially adversely affect the
financial condition or operations of the Borrower or any of
its Subsidiaries, taken as a whole.
(g) After applying the proceeds of each Advance and
Special Rate Loan, not more than 25% of the value of the
assets of the Borrower and its Subsidiaries (as determined
in good faith by the Borrower) that are subject to
Section 5.02(a)(i) or Section 5.02(d) will consist of or be
represented by Margin Stock.
(h) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying
Margin Stock, and no proceeds of any Advance or Special Rate
Loan will be used for any purpose which violates the
provisions of the regulations of the Board of Governors of
the Federal Reserve System. If requested by any Bank or the
Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Bank a statement in conformity
with the requirements of Federal Reserve Form U-1 referred
to in Regulation U, the statements made in which shall be
such, in the opinion of each Bank, as to permit the
transactions contemplated hereby in accordance with
Regulation U.
(i) No Termination Event has occurred nor is
reasonably expected to occur with respect to any Plan which
may materially adversely affect the financial condition or
operations of the Borrower and its Subsidiaries, taken as a
whole. Neither the Borrower nor any of its ERISA Affiliates
has incurred nor reasonably expects to incur any withdrawal
liability under ERISA to any Multiemployer Plan which may
materially adversely affect the financial condition or
operations of the Borrower and its Subsidiaries, taken as a
whole. Schedule B (Actuarial Information) to the 1993
annual report (Form 5500 Series) with respect to each Plan,
copies of which have been filed with the Internal Revenue
Service and furnished to each Bank, is complete and accurate
in all material respects and in all material respects fairly
presents the funding status of each Plan. No Reportable
Event has occurred and is continuing with respect to any
Plan which may materially adversely affect the financial
condition or operations of the Borrower and its
Subsidiaries, taken as a whole.
(j) The Borrower and its Subsidiaries are in
compliance with all applicable laws and regulations relating
to the environment or to the discharge, transport or storage
of hazardous materials except to the extent that non-
compliance therewith would not have a material adverse
effect on the financial condition or operations of the
Borrower and its Subsidiaries taken as a whole.
(k) (i) True copies of the Tender Offer Materials as
in effect on the date hereof have been delivered to the
Banks; (ii) the Tender Offer is in compliance in all
material respects with applicable law; (iii) all written
information concerning the Borrower and its Subsidiaries
(excluding financial projections) that has been or will
hereafter be made available to the Administrative Agent, any
other Co-Agent, either Co-Arranger or any Bank by the
Borrower or any of its representatives under this Agreement
or in connection with the transactions contemplated hereby
is and will be correct in all material respects and does not
and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make
the statements contained therein not misleading in light of
the circumstances under which such statements were or are
made; and (iv) all financial projections concerning the
Borrower and its Subsidiaries that have been or will be
prepared by the Borrower in writing and made available to
the Administrative Agent, any other Co-Agent, either Co-
Arranger or any Bank by the Borrower or any of its
representatives under this Agreement or in connection with
the transactions contemplated hereby have been or will be
prepared in good faith based upon reasonable assumptions (it
being understood that such projections are subject to
significant uncertainties and contingencies, many of which
are beyond the control of the Borrower, and that no
assurance can be given that the projections will be
realized).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance or Special Rate Loan shall remain unpaid or any Bank
shall have any Commitment hereunder, the Borrower will, and, in
the case of Section 5.01(a), will cause its Subsidiaries to,
unless the Majority Banks shall otherwise consent in writing:
(a) Keep Books; Corporate Existence; Maintenance of
Properties; Compliance with Laws; Insurance.
(i) keep proper books of record and account, all
in accordance with generally accepted accounting
principles;
(ii) preserve and keep in full force and effect
its existence, and preserve and keep in full force and
effect its licenses, rights and franchises to the
extent it deems necessary to carry on its business;
(iii) maintain and keep, or cause to be maintained
and kept, its properties in good repair, working order
and condition, and from time to time make or cause to
be made all needful and proper repairs, renewals,
replacements and improvements, in each case to the
extent it deems necessary to carry on its business;
(iv) use its reasonable efforts to comply in all
material respects with all material applicable
statutes, regulations and orders of, and all material
applicable restrictions imposed by, any governmental
agency in respect of the conduct of its business and
the ownership of its properties, to the extent it deems
necessary to carry on its business, except such as are
being contested in good faith by appropriate
proceedings; and
(v) insure and keep insured its properties in
such amounts (and with such self-insurance and
deductibles) as it deems necessary to carry on its
business and to the extent available on premiums and
other terms which the Borrower or any Subsidiary, as
the case may be, deems appropriate. Any of such
insurance may be carried by, through or with any
captive or affiliated insurance company or by way of
self-insurance as the Borrower or any Subsidiary, as
the case may be, deems appropriate.
Nothing in this subsection shall prohibit the Borrower or any of
its Subsidiaries from discontinuing any business, forfeiting any
license, right or franchise or discontinuing the operation or
maintenance of any of its properties to the extent it deems
appropriate in the conduct of its business.
(b) Net Worth. Maintain an excess of consolidated
total assets over consolidated total liabilities of the
Borrower and its consolidated Subsidiaries of not less than
$2,250,000,000.
(c) Reporting Requirements. Furnish to each Bank:
(i) 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
statement of the consolidated financial condition of
the Borrower and its consolidated Subsidiaries as at
the end of such quarter and the related statements of
income and retained earnings of the Borrower and its
consolidated Subsidiaries for the period commencing at
the end of the previous fiscal year and ending with the
end of such quarter, certified by a principal financial
or accounting officer of the Borrower; provided,
however, that the Borrower may deliver, in lieu of the
foregoing, the quarterly report of the Borrower for
such fiscal quarter on Form 10-Q filed with the
Securities and Exchange Commission or any governmental
authority succeeding to the functions of such
Commission, but only so long as the financial
statements contained in such quarterly report on Form
10-Q relate to the same companies and are substantially
the same in content as the financial statements
referred to in the preceding provisions of this
clause (i);
(ii) as soon as available and in any event within
90 days after the end of each fiscal year of the
Borrower, a copy of the annual report for such year for
the Borrower and its Subsidiaries, containing the
consolidated financial statements of the Borrower and
its consolidated Subsidiaries for such year and
accompanied by a report thereon of Deloitte & Touche or
other independent public accountants of nationally
recognized standing;
(iii) promptly after the sending or filing thereof,
copies of all reports which the Borrower sends to its
stockholders generally, and copies of all reports and
registration statements (without exhibits) which the
Borrower files with the Securities and Exchange
Commission or any national securities exchange (other
than registration statements relating to employee
benefit plans);
(iv) promptly after the filing or receiving
thereof, copies of any notices of any of the events set
forth in Section 4043(b) of ERISA or the regulations
thereunder which the Borrower or any Subsidiary files
with the PBGC, or which the Borrower or any Subsidiary
receives from the PBGC to the effect that proceedings
or other action by the PBGC is to be instituted; and
(v) such other information respecting the
condition or operations, financial or otherwise, of the
Borrower or any of its Subsidiaries as any Bank through
the Administrative Agent may from time to time
reasonably request.
(d) Notices. Promptly give notice to the
Administrative Agent and each Bank:
(i) of the occurrence of any Default or Event of
Default; and
(ii) of the commencement of any litigation,
investigation or proceeding affecting the Borrower or
any of its Subsidiaries before any court, governmental
authority or arbitrator which, in the reasonable
judgment of the Borrower, could have a material adverse
effect on the business, operations, property or
financial or other condition of the Borrower and its
Subsidiaries, taken as a whole.
Each notice pursuant to this subsection shall be accompanied by a
statement of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes
to take with respect thereto.
(e) Certificates. Furnish to each Bank:
(i) concurrently with the delivery of the
financial statements referred to in Section
5.01(c)(ii), a letter signed by the independent public
accountants certifying such financial statements to the
effect that, in the course of the examination upon
which their report for such fiscal year was based (but
without any special or additional audit procedures for
that purpose other than review of the terms and
provisions of this Agreement), they did not become
aware of any Default or Event of Default involving
financial or accounting matters, or, if such
accountants became aware of any such Default or Event
of Default, specifying the nature thereof; and
(ii) concurrently with the delivery of the
financial statements or Form 10-Q referred to in
Section 5.01(c)(i), a certificate of a principal
financial or accounting officer of the Borrower stating
that, to the best of such officer's knowledge, the
Borrower during such period has observed or performed
all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement
to be observed, performed or satisfied by it, and that
such officer has obtained no knowledge of any Default
or Event of Default, except as specified in such
certificate.
(f) Use of Proceeds. Use the proceeds of the Advances
and Special Rate Loans solely to finance the Tender Offer
and for the general corporate purposes of the Borrower;
provided that neither any Bank nor the Administrative Agent
nor any other Co-Agent or either Co-Arranger shall have any
responsibility for the use of any of the proceeds of the
Advances or Special Rate Loans.
SECTION 5.02. Negative Covenants. So long as any
Advance or Special Rate Loan shall remain unpaid or any Bank
shall have any Commitment hereunder, the Borrower will not,
without the written consent of the Majority Banks:
(a) Liens, Etc. (i) Create, assume, incur or
suffer to exist, or permit any Subsidiary to create,
assume, incur or suffer to exist, any Mortgage (as
hereinafter defined) upon any stock or indebtedness,
whether now owned or hereafter acquired, of any
Domestic Subsidiary (as hereinafter defined), to secure
any Debt of the Borrower or any other Person (other
than the Advances and Special Rate Loans made
hereunder), without in any such case making effective
provision whereby all of the Advances and Special Rate
Loans made hereunder shall be directly secured equally
and ratably with such Debt, excluding, however, from
the operation of the foregoing provisions of this
paragraph (i) any Mortgage upon stock or indebtedness
of any corporation existing at the time such
corporation becomes a Domestic Subsidiary, or existing
upon stock or indebtedness of a Domestic Subsidiary at
the time of acquisition of such stock or indebtedness,
and any extension, renewal or replacement (or
successive extensions, renewals or replacements) in
whole or in part of any such Mortgage; provided,
however, that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt
so secured at the time of such extension, renewal or
replacement; and provided, further, that such Mortgage
shall be limited to all or such part of the stock or
indebtedness which secured the Mortgage so extended,
renewed or replaced;
(ii) Create, assume, incur or suffer to exist, or
permit any Restricted Subsidiary (as hereinafter
defined) to create, assume, incur or suffer to exist,
any Mortgage upon any Principal Property (as
hereinafter defined), whether owned or leased on the
date hereof or hereafter acquired, to secure any Debt
of the Borrower or any other Person (other than the
Advances and Special Rate Loans made hereunder),
without in any such case making effective provision
whereby all of the Advances and Special Rate Loans made
hereunder shall be directly secured equally and ratably
with such Debt, excluding, however, from the operation
of the foregoing provisions of this paragraph (ii):
(A) any Mortgage upon property owned or
leased by any corporation existing at the time
such corporation becomes a Restricted Subsidiary;
(B) any Mortgage upon property existing at
the time of acquisition thereof or to secure the
payment of all or any part of the purchase price
thereof or to secure any Debt incurred prior to,
at the time of or within 180 days after the
acquisition of such property for the purpose of
financing all or any part of the purchase price
thereof;
(C) any Mortgage upon property to secure all
or any part of the cost of exploration, drilling,
development, construction, alteration, repair or
improvement of all or any part of such property,
or Debt incurred prior to, at the time of or
within 180 days after the completion of such
exploration, drilling, development, construction,
alteration, repair or improvement for the purpose
of financing all or any part of such cost;
(D) any Mortgage securing Debt of a
Restricted Subsidiary owing to the Borrower or to
another Restricted Subsidiary;
(E) any Mortgage existing on the date hereof
and set forth on Schedule II hereto; and
(F) any extension, renewal or replacement
(or successive extensions, renewals or
replacements) in whole or in part of any Mortgage
referred to in the foregoing clauses (A) to (E),
inclusive; provided, however, that the principal
amount of Debt secured thereby shall not exceed
the principal amount of Debt so secured at the
time of such extension, renewal or replacement;
and provided, further, that such Mortgage shall be
limited to all or such part of the property which
secured the Mortgage so extended, renewed or
replaced (plus improvements on such property).
Notwithstanding the foregoing provisions of this
paragraph (ii), the Borrower may, and may permit any
Restricted Subsidiary to, create, assume, incur or
suffer to exist any Mortgage upon any Principal
Property which is not excepted by clauses (A) through
(F), above, without equally and ratably securing the
Advances and Special Rate Loans, provided that the
aggregate amount of Debt then outstanding secured by
such Mortgage and all similar Mortgages does not exceed
10% of the total consolidated stockholders' equity of
the Borrower as shown on the most recent audited
consolidated balance sheet required to be delivered to
the Banks pursuant to Section 5.01(c). For the purpose
of this paragraph (ii), the following types of
transactions shall not be deemed to create a Mortgage
to secure any Debt:
(A) the sale or other transfer of (y) any
oil or gas or minerals in place for a period of
time until, or in an amount such that, the
purchaser will realize therefrom a specified
amount of money (however determined) or a
specified amount of such oil or gas or minerals,
or (z) any other interest in property of the
character commonly referred to as a "production
payment"; and
(B) any Mortgage in favor of the United
States of America or any state thereof, or any
other country, or any political subdivision of any
of the foregoing, to secure partial, progress,
advance or other payments pursuant to the
provisions of any contract or statute, or any
Mortgage upon property of the Borrower or a
Restricted Subsidiary intended to be used
primarily for the purpose of or in connection with
air or water pollution control, provided that no
such Mortgage shall extend to any other property
of the Borrower or a Restricted Subsidiary.
As used in this Section 5.02(a), the following terms
shall have the following meanings notwithstanding any conflicting
definition set forth in Section 1.01:
"Domestic Subsidiary" means a Subsidiary which is
incorporated or conducting its principal operations within the
United States of America or any state thereof or off the coast of
the United States of America but within an area over which the
United States of America or any state thereof has jurisdiction.
"Mortgage" means any mortgage, pledge, lien,
encumbrance, charge or security interest of any kind.
"Principal Property" means (i) any property owned or
leased by the Borrower or any Subsidiary, or any interest of the
Borrower or any Subsidiary in property, located within the United
States of America or any state thereof (including property
located off the coast of the United States of America held
pursuant to lease from any Federal, State or other governmental
body), which is considered by the Borrower to be capable of
producing oil or gas or minerals in commercial quantities, and
(ii) any refinery, smelter or processing or manufacturing plant
owned or leased by the Borrower or any Subsidiary and located
within the United States of America or any state thereof, except
(a) facilities related thereto employed in transportation,
distribution or marketing or (b) any refinery, smelter or
processing or manufacturing plant, or portion thereof, which in
the opinion of the Board of Directors of the Borrower is not a
principal plant in relation to the activities of the Borrower and
its Restricted Subsidiaries taken as a whole.
"Restricted Subsidiary" means any Subsidiary which owns
or leases (as lessor or lessee) a Principal Property but does not
include (i) Union Pacific Railroad Company or any other
Subsidiary which is principally a common carrier by rail or truck
engaged in interstate or intrastate commerce and is subject to
regulation of such activities by any Federal, state or other
governmental body, or (ii) any Subsidiary the principal business
of which is leasing machinery, equipment, vehicles or other
properties none of which is a Principal Property, or financing
accounts receivable, or engaging in ownership and development of
any real property which is not a Principal Property.
(b) Debt to Net Worth Restriction. Create or suffer
to exist, or permit any of its Subsidiaries to create or
suffer to exist, any Debt if, immediately after giving
effect to such Debt and to the receipt and application of
any proceeds thereof, the aggregate amount of Debt of the
Borrower and its consolidated Subsidiaries, on a
consolidated basis, would exceed 200% of the total
consolidated stockholders' equity of the Borrower as shown
on the most recent consolidated balance sheet required to be
delivered to the Banks pursuant to Section 5.01(c).
(c) Restriction on Fundamental Changes. Enter into
any transaction of merger or consolidation, or convey,
transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(i) the corporation formed by such consolidation
or into which the Borrower is merged or the Person
which acquires by conveyance or transfer, or which
leases, the properties and assets of the Borrower
substantially as an entirety shall be a corporation
organized and existing under the laws of the United
States of America, any state thereof or the District of
Columbia (the "Successor Corporation") and shall
expressly assume, by amendment to this Agreement
executed by the Borrower and such Successor Corporation
and delivered to the Administrative Agent, the due and
punctual payment of the principal of and interest on
the Advances and Special Rate Loans made hereunder and
all other amounts payable under this Agreement and the
performance or observance of every covenant hereof on
the part of the Borrower to be performed or observed;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease,
properties or assets of the Borrower would become
subject to a Mortgage which would not be permitted by
Section 5.02(a), the Borrower or the Successor
Corporation, as the case may be, shall take such steps
as shall be necessary effectively to secure the
Advances and Special Rate Loans made hereunder equally
and ratably with (or prior to) all indebtedness secured
thereby; and
(iv) the Borrower shall have delivered to the
Administrative Agent a certificate signed by an
executive officer of the Borrower and a written opinion
of counsel satisfactory to the Administrative Agent
(who may be counsel to the Borrower), each stating that
such transaction and such amendment to this Agreement
comply with this Section 5.02(c) and that all
conditions precedent herein provided for relating to
such transaction have been satisfied.
(d) Prohibition of Sale of Certain Stock. Convey,
sell, assign or otherwise transfer (or permit any Subsidiary
to do so) any of the shares of capital stock of the
Railroads now owned (directly or indirectly) or at any time
hereafter acquired (directly or indirectly) by the Borrower,
provided that nothing in this Section 5.02(d) will prohibit
transfers of shares of capital stock of a Railroad to
another Railroad or to another Subsidiary of the Borrower or
will prohibit the merger or other consolidation of one
Railroad with or into another Railroad or another Subsidiary
of the Borrower.
(e) Compliance with ERISA. To the extent that any
event or action set forth in clauses (i) through (iv) below
would subject the Borrower and its Subsidiaries taken as a
whole to any material liability to the PBGC or otherwise,
(i) terminate, or permit any Subsidiary to terminate, any
Plan; (ii) engage in, or permit any Subsidiary to engage in,
any "prohibited transaction" (as defined in Section 4975 of
the Code) involving any Plan; (iii) incur or suffer to
exist, or permit any Subsidiary to incur or suffer to exist,
any "accumulated funding deficiency" (as defined in Section
302 of ERISA), whether or not waived, involving any Plan; or
(iv) allow or suffer to exist, or permit any Subsidiary to
allow or suffer to exist, any event or condition which
presents a risk of incurring a liability to the PBGC by
reason of termination of any Plan.
(f) Amendments to Tender Offer, Etc. Make any
amendment to the Tender Offer or the Merger Agreement which
is materially adverse from the standpoint of the financing
contemplated hereby, without the prior written consent of
the Majority Banks (which consent shall not be unreasonably
withheld or delayed), it being understood that this
Section 5.02(f) shall be of no further force and effect
after the consummation of the Tender Offer and the other
transactions contemplated by the Merger Agreement in
accordance with the terms and conditions hereof and thereof.
(g) Margin Stock. Permit more than 25%, after
applying the proceeds of each Advance or Special Rate Loan,
of the value of the assets of the Borrower and its
Subsidiaries (as determined in good faith by the Borrower)
that are subject to Section 5.02(a)(i) or Section 5.02(d) to
consist of or be represented by Margin Stock.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) the Borrower shall fail to pay any principal of
any Advance or Special Rate Loan when the same becomes due
and payable; provided, that if any such failure shall result
from the malfunctioning or shutdown of any wire transfer or
other payment system employed by the Borrower to make such
payment or from an inadvertent error of a technical or
clerical nature by the Borrower or any bank or other entity
employed by the Borrower to make such payment, no Event of
Default shall result under this paragraph (a) during the
period (not in excess of two Business Days) required by the
Borrower to make alternate payment arrangements; or
(b) the Borrower shall fail to pay any interest on any
Advance or Special Rate Loan or any fee payable hereunder or
under any agreement executed in connection herewith when the
same becomes due and payable and such failure shall remain
unremedied for ten days; or
(c) any representation or warranty made by the
Borrower herein or by the Borrower (or any of its officers)
in connection with this Agreement (including, without
limitation, any representation or warranty deemed made by
the Borrower at the time of any Advance or Special Rate Loan
pursuant to Article III) shall prove to have been incorrect
in any material respect when made or deemed made; or
(d) the Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the
Administrative Agent or any Bank; or
(e) an event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or
by which there may be secured or evidenced, any Debt of the
Borrower (other than any such Debt owed to any Bank or an
affiliate of any Bank if such event of default shall relate
solely to a restriction on Margin Stock), whether such Debt
now exists or shall hereafter be created, shall happen and
shall result in Debt of the Borrower in excess of
$20,000,000 principal amount becoming or being declared due
and payable prior to the date on which it would otherwise
become due and payable, and such declaration shall not be
rescinded or annulled; or the Borrower shall fail to pay at
maturity (or within five calendar days after maturity) Debt
of the Borrower in excess of $20,000,000 principal amount;
or
(f) (i) the Borrower or any of the Railroads shall
commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Borrower
or any of the Railroads shall make a general assignment for
the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any of the Railroads any
case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced against the
Borrower or any of the Railroads any case, proceeding or
other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of
an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Borrower
or any of the Railroads shall take any action in furtherance
of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i),
(ii) or (iii) above; or (v) the Borrower or any of the
Railroads shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as
they become due;
(g) a Material Plan shall fail to maintain the minimum
funding standards required by Section 412 of the Code for
any plan year or a waiver of such standard is sought or
granted under Section 412(d), or a Material Plan is, shall
have been or will be terminated or the subject of
termination proceedings under ERISA, or the Borrower or any
of its Subsidiaries or any ERISA Affiliate has incurred or
will incur a liability to or on account of a Material Plan
under Sections 4062, 4063 or 4064 of ERISA, and there shall
result from any such event either a liability or a material
risk of incurring a liability to the PBGC or a Material Plan
(or a related trust) which will have a material adverse
effect upon the business, operations or the condition
(financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole; or
(h) the Borrower or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it
has incurred withdrawal liability to such Multiemployer Plan
in an amount which, when aggregated with all other amounts
required to be paid to Multiemployer Plans in connection
with withdrawal liabilities (determined as of the date of
such notification), will have a material adverse effect upon
the business, operations or the condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a
whole;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of Banks having at least
66-2/3% of the Commitments, by notice to the Borrower, declare
the obligation of each Bank to make Contract Advances (and to
make any Auction Advances and Special Rate Loans that such Bank
has theretofore committed to make) to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of Banks owed at least 66-2/3%
of the then aggregate unpaid principal amount of the Advances and
Special Rate Loans owing to Banks, by notice to the Borrower,
declare the Advances and Special Rate Loans, all interest thereon
and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances and Special
Rate Loans, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with
respect to the Borrower or any of its Subsidiaries under the
Federal Bankruptcy Code, (A) the obligation of each Bank to make
Contract Advances (and to make any Auction Advances and Special
Rate Loans that such Bank has theretofore committed to make)
shall automatically be terminated and (B) the Advances and
Special Rate Loans, all such interest and all such amounts shall
automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT, ETC.
SECTION 7.01. Authorization and Action. Each Bank
hereby appoints and authorizes the Administrative Agent to take
such action as administrative agent on its behalf and to exercise
such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters
not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the amounts due
hereunder), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the
Majority Banks, and such instructions shall be binding upon all
Banks and all holders of Advances and Special Rate Loans;
provided, however, that the Administrative Agent shall not be
required to take any action which exposes the Administrative
Agent to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent agrees to
give to each Bank prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement. Chemical Bank
and Citicorp Securities, Inc., in their capacities as Co-
Arrangers, Chemical Securities, Inc., in its capacity as
Syndication Agent, and Citibank, N.A., in its capacity as
Documentation Agent, shall have no duties, responsibilities or
liabilities whatsoever under this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, except for its or their own gross negligence
or wilful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may consult with
legal counsel (including 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 in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation
to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations made in or in
connection with this Agreement; (iii) shall not have any duty to
ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or to inspect the property (including
the books and records) of the Borrower; (iv) shall not be
responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; and (v) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by
telecopy, telegram or cable) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Chemical Bank and Affiliates. With
respect to its Commitment and the Advances and Special Rate Loans
made by it, Chemical Bank shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same
as though it were not the Administrative Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated,
include Chemical Bank in its individual capacity. Chemical Bank
and its affiliates may accept deposits from, lend money to, act
as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any of its subsidiaries and any
Person who may do business with or own securities of the Borrower
or any such subsidiary or affiliate, all as if Chemical Bank were
not the Administrative Agent and without any duty to account
therefor to the Banks.
SECTION 7.04. Bank Credit Decision. Each Bank
acknowledges that it has, independently and without reliance upon
the Administrative Agent, any other Co-Agent, either Co-Arranger
or any other Bank and based on the financial statements referred
to in Section 4.01 and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Bank also acknowledges that
it will, independently and without reliance upon the
Administrative Agent, any other Co-Agent, either Co-Arranger or
any other Bank 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 action under this
Agreement.
SECTION 7.05. Indemnification. The Banks agree to
indemnify the Administrative Agent, the other Co-Agents and the
Co-Arrangers (to the extent not promptly reimbursed by the
Borrower), ratably as computed as set forth below from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against any of them in any
way relating to or arising out of the Tender Offer or this
Agreement or any action taken or omitted by the Administrative
Agent under this Agreement, provided that no Bank shall be liable
for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful
misconduct of the Administrative Agent. Without limitation of
the foregoing, each Bank agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any costs and
expenses payable by the Borrower under Section 8.04, to the
extent that the Administrative Agent is not promptly reimbursed
for such costs and expenses by the Borrower. For purposes of
this Section 7.05, ratable allocations among the Banks shall be
made (i) in respect of any demand by the Administrative Agent
prior to a declaration made pursuant to clause (ii) of
Section 6.01, according to the respective amounts of their
Commitments and (ii) thereafter according to the respective
principal amounts of the Advances and Special Rate Loans then
outstanding to them (or, if there are no Advances or Special Rate
Loans at the time outstanding, according to the respective
amounts of their Commitments as most recently in effect). Each
Bank agrees that any reasonable allocation by the Administrative
Agent of expenses or other amounts referred to in this paragraph
between this Agreement, the $1,100,000,000 Credit Agreement and
the $1,400,000,000 Credit Agreement shall be conclusive and
binding for all purposes.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Banks and the Borrower and may be removed
at any time with or without cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have
the right to appoint a successor Administrative Agent with the
consent of the Borrower (which consent shall not be required if
at the time of such appointment any Default or Event of Default
has occurred and is continuing). If no successor Administrative
Agent shall have been so appointed by the Majority Banks, and
shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation
or the Majority Banks' removal of the retiring Administrative
Agent, as applicable, then the retiring Administrative Agent may,
on behalf of the Banks, appoint a successor Administrative Agent,
which shall be a commercial bank organized or licensed under the
laws of the United States of America or of any state thereof and
having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor
Administrative Agent shall succeed to and become vested with all
the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Banks,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that:
(a) no amendment, waiver or consent shall, unless in
writing and signed by all the Banks, do any of the
following: (1) waive any of the conditions specified in
Section 3.01, (2) waive any of the conditions specified in
Section 3.02 (if and to the extent that the Borrowing which
is the subject of such waiver would involve an increase in
the aggregate outstanding amount of Advances over the
aggregate amount of Advances outstanding immediately prior
to such Borrowing), (3) increase the Commitments of the
Banks or subject the Banks to any additional obligations,
(4) reduce the principal of, or interest on, the Contract
Advances or any fees or other amounts payable hereunder,
(5) postpone any date fixed for any payment of principal of,
or interest on, the Contract Advances or any fees or other
amounts payable hereunder, (6) make any change which would
alter the percentage of the Commitments or of the aggregate
unpaid principal amount of the Contract Advances, or the
number of Banks, which shall otherwise be required for the
Banks or any of them to take any action hereunder or
(7) amend this Section 8.01;
(b) no amendment, waiver or consent shall, unless in
writing and signed by the Bank holding an Auction Advance at
such time (1) reduce the principal of, or interest on, such
Auction Advance or any fees or other amounts payable
hereunder or thereunder with respect thereto, (2) postpone
any date fixed for any payment of principal of, or interest
on, such Auction Advance or any fees or other amounts
payable hereunder or thereunder with respect thereto, or
(3) subject such Bank to any additional obligations with
respect to such Bank's Auction Advance;
(c) no amendment, waiver or consent shall, unless in
writing and signed by the Bank holding a Special Rate Loan
at such time (1) reduce the principal of, or interest on,
such Special Rate Loan or any fees or other amounts payable
with respect thereto, (2) postpone any date fixed for any
payment of principal of, or interest on, such Special Rate
Loan or any fees or other amounts payable with respect
thereto, or (3) subject such Bank to any additional
obligations with respect to such Bank's Special Rate Loan;
(d) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition
to the Banks required above to take such action, affect the
rights or duties of the Administrative Agent under this
Agreement; and
(e) no amendment, waiver or consent shall, unless in
writing and signed by the Co-Arrangers and the Co-Agents,
alter the last sentence of Section 7.01.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopy, telegraphic or cable communication) and
telecopied, mailed, telegraphed, cabled or delivered, if to the
Borrower, at its address at Martin Tower, Eighth and Eaton
Avenues, Bethlehem, Pennsylvania 18018, Attention: Vice
President and Treasurer, telephone number (610) 861-3200,
telecopier number (610) 861-3111; if to any Bank listed on
Schedule I hereto, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Bank, at
its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Bank; and if to the
Administrative Agent, at its address at Chemical Bank Agency
Services Corporation, Grand Central Tower, 140 East 45th Street,
29th Floor, New York, New York 10017, Attention: Sandra J.
Miklave, with a copy to Chemical Bank, 270 Park Avenue, 8th
Floor, New York, New York 10017, Attention: Julie S. Long; or,
as to the Borrower, any Bank or the Administrative Agent, at such
other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written
notice to the Borrower and the Administrative Agent. All such
notices and communications shall, when telecopied, mailed,
telegraphed or cabled, be effective when sent by telecopy,
deposited in the mails, delivered to the telegraph company or
delivered to the cable company, respectively, except that notices
and communications to the Administrative Agent pursuant to
Article II or VII shall not be effective until received by the
Administrative Agent. The Administrative Agent shall be entitled
to rely on any oral notice made pursuant to Section 2.03(v)
believed by it to be genuine and made by the proper party or
parties, and the Borrower and the Banks, as the case may be,
agree to be conclusively bound by the Administrative Agent's
records in respect of any such notice.
SECTION 8.03. No Waiver; Remedies. No failure on the
part of any Bank or the Administrative Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Taxes. (a) The
Borrower agrees to pay on demand all costs and expenses in
connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement and
the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto and
with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement, and all costs
and expenses, if any (including, without limitation, reasonable
counsel fees and expenses), incurred by the Administrative Agent
or any Bank in connection with the "work-out" or other
enforcement (whether through negotiations, legal proceedings or
otherwise) of this Agreement and the other documents to be
delivered hereunder. In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies which arise from the
execution and delivery of this Agreement and agrees to save the
Administrative Agent and each Bank harmless from and against any
and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.
(b) If (i) any payment of principal of any Adjusted CD
Rate Advance or Eurodollar Rate Contract Advance or Auction
Advance or Special Rate Loan is made (1) by the Borrower to or
for the account of a Bank other than on the last day of the
Interest Period for such Contract Advance, or on the maturity
date of such Auction Advance or Special Rate Loan, as the case
may be, or as a result of a payment pursuant to Section 2.07(d),
or as a result of acceleration of the maturity of the Advances
and Special Rate Loans pursuant to Section 6.01 or for any other
reason, or (2) by an Eligible Assignee to a Bank other than on
the last day of the Interest Period (or the final maturity date
in the case of an Auction Advance or Special Rate Loan) for such
Advance or Special Rate Loan upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a),
or an assignment of rights and obligations under this Agreement
pursuant to Section 2.17 as a result of a demand by the Borrower,
or (ii) the Borrower fails to convert or continue any Contract
Advance hereunder after irrevocable notice of such conversion or
continuation has been given pursuant to Section 2.04, then the
Borrower shall, upon demand by the affected Bank (with a copy of
such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank any amounts
required to compensate such Bank for any additional losses, costs
or expenses which it may reasonably incur as a result of such
payment or failure, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund or maintain such Advance. A
certificate of such Bank setting forth the amount demanded
hereunder and the basis therefor shall, in the absence of
manifest error, be conclusive and binding for all purposes.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Administrative Agent
to declare the Advances and Special Rate Loans due and payable
pursuant to the provisions of Section 6.01, each Bank is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Advances and
Special Rate Loans made by such Bank, irrespective of whether or
not such Bank shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Bank agrees
promptly to notify the Borrower and the Administrative Agent
after any such setoff and application made by such Bank, provided
that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each
Bank under this Section 8.05 are in addition to other rights and
remedies (including, without limitation, other rights of setoff)
which such Bank may have.
SECTION 8.06. Binding Effect. This Agreement shall
become effective when it shall have been executed by the
Borrower, the Administrative Agent, the other Co-Agents and the
Co-Arrangers and when the Administrative Agent shall have been
notified by each Bank that such Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent, the other Co-Agents, the Co-
Arrangers and each Bank and their respective successors and
assigns.
SECTION 8.07. Assignments and Participations.
(a) Each Bank may and, if demanded by the Borrower pursuant to
subsection (g) hereof, shall assign to one or more banks or other
entities all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
of its Commitment and the Advances and Special Rate Loans owing
to it); provided, however, that (i) each such assignment shall
(except in the case of outstanding Auction Advances and Special
Rate Loans) be of a constant, and not a varying, percentage of
all of the rights and obligations of the Banks under this
Agreement, (ii) the amount of the Commitment of the assigning
Bank being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to
such assignment) shall in no event be less than the lesser of
(x) the amount set forth opposite the name of such Bank on the
signature pages to this Agreement or in the Assignment and
Acceptance pursuant to which the assigning Bank became a Bank,
and (y) $25,000,000, and shall be an integral multiple of
$1,000,000, (iii) each such assignment shall be to an Eligible
Assignee and (iv) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing fee of $2,500. Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which
effective date shall be at least three Business Days after the
execution thereof, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder
and (y) the Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Bank's rights and obligations
under this Agreement, such Bank shall cease to be a party
hereto), provided that the obligations of the Borrower to the
Bank assignor described in Sections 2.02(b), 2.11, 2.12, 2.15,
8.04 and 8.12 that arose prior to such assignment, and the
obligations of the Bank assignor described in Sections 7.05 and
8.10 that arose prior to such assignment, shall survive the
making of such assignment, notwithstanding that such Bank
assignor may cease to be a "Bank" hereunder. Notwithstanding the
foregoing, any Bank assigning its rights and obligations under
this Agreement may retain any Auction Advances and any Special
Rate Loans made by it outstanding at such time, and in such case
shall retain its rights hereunder in respect of any Advances and
Special Rate Loans so retained until such Advances and Special
Rate Loans have been repaid in full in accordance with this
Agreement.
(b) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, any other Co-Agent,
either Co-Arranger, such assigning Bank or any other Bank 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 action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee,
except for any required consent of the Borrower; (vi) such
assignee appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent
by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of this Agreement are required to be performed
by it as a Bank.
(c) The Administrative Agent shall maintain at its
address referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and the
Commitment of, and principal amount of the Advances owing to,
each Bank from time to time (the "Register"). Subject to
Section 2.14(f), the entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee representing that
it is an Eligible Assignee, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit B hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained
therein in the Register, (iii) give prompt notice thereof to the
Borrower and (iv) send a copy thereof to the Borrower.
(e) Each Bank may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the Advances
or Special Rate Loans owing to it); provided, however, that (i)
such Bank's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Bank shall remain solely responsible
to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent and
the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations
under this Agreement; and provided further, however, that such
Bank shall not agree with any such bank or other financial
institution to permit such bank or other financial institution to
enforce the obligations of the Borrower relating to the Advances
or any Special Rate Loan or to approve of any amendment,
modification or waiver of any provision of this Agreement (other
than amendments, modifications or waivers with respect to any
decrease in any fees payable hereunder or the amount of principal
or rate of interest which is payable in respect of such Advances
or Special Rate Loan or any extension of the dates fixed for the
payment thereof).
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant any information relating to the
Borrower furnished to such Bank by or on behalf of the Borrower;
provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to
preserve the confidentiality of any information relating to the
Borrower, this Agreement or the Tender Offer received by it from
such Bank in accordance with Section 8.10.
(g) If any Bank shall make demand for payment under or
shall notify the Borrower that it is affected by an event
described in Section 2.11 or 2.15 hereunder or shall notify the
Administrative Agent pursuant to Section 2.13 hereunder, then
within 15 days after such demand or such notice, the Borrower may
(i) demand that such Bank assign in accordance with this
Section 8.07 to one or more Eligible Assignees designated by the
Borrower all (but not less than all) of such Bank's Commitment
and the Advances and Special Rate Loans owing to it within the
next succeeding 30 days, provided that, if any such Eligible
Assignee designated by the Borrower shall fail to consummate such
assignment on terms acceptable to such Bank, or if the Borrower
shall fail to designate any such Eligible Assignees for all or
part of such Bank's Commitment, Advances and Special Rate Loans,
then such Bank may assign such Commitment, Advances and Special
Rate Loans to any other Eligible Assignee in accordance with this
Section 8.07 during such 30-day period or (ii) terminate all (but
not less than all) of such Bank's Commitment and repay all (but
not less than all) of such Bank's Advances and Special Rate Loans
not so assigned on or before such 30th day in accordance with
Sections 2.06 and 2.07(d) hereof (but without the requirements
stated therein for ratable treatment of the Banks). Nothing in
this Section 8.07(g) shall relieve the Borrower of its
obligations for payment under Section 2.11 or 2.15 arising prior
to an assignment or termination pursuant hereto.
(h) Any Bank may at any time assign all or any portion
of its rights under this Agreement to a Federal Reserve Bank;
provided that no such assignment shall release a Bank from any of
its obligations hereunder. In connection with any such
assignment or proposed assignment, the Borrower will, promptly
upon the request of any Bank, execute and deliver to such Bank a
note evidencing the Borrower's obligations hereunder, in a form
mutually satisfactory to the Borrower and such Bank; provided
that if the Borrower certifies to such Bank upon such request
that it believes any authorization, approval or other action by
the Interstate Commerce Commission (or any successor agency
having jurisdiction) is required for the issuance of such note,
the Borrower shall not be deemed to be in default under this
Section 8.07(h) so long as the Borrower is diligently seeking
such authorization, approval or other action, at such Bank's
expense.
(i) This Section 8.07 sets forth the exclusive manner
by which a Bank may assign its rights and obligations hereunder
or sell participations in or to its rights and obligations
hereunder.
(j) Each Bank agrees to notify the Borrower of any
assignment of or grant of a participating interest in any Advance
or Special Rate Loan, and of the identity of the assignee or
participant.
(k) The Borrower may not assign or delegate any rights
or obligations hereunder without the prior written consent of
each Bank.
SECTION 8.08. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 8.09. Submission to Jurisdiction; Service of
Process; Jury Trial. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York state court
sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Borrower shall at all
times continue to be qualified to do business in and maintain an
office in New York or, alternatively, shall maintain an agent for
service of process in New York and shall provide the
Administrative Agent with notice of the identity of such agent,
such appointment to be documented in a manner satisfactory to the
Administrative Agent. The Borrower hereby agrees that service of
process in any such proceeding may be effected by mailing a copy
thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to it at its address
referred to in Section 8.02. The Borrower irrevocably waives, to
the fullest extent permitted by applicable law, any objection
that it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in
an inconvenient forum. EACH OF THE BORROWER, THE CO-ARRANGERS,
THE ADMINISTRATIVE AGENT, THE OTHER CO-AGENTS AND THE BANKS
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THIS
AGREEMENT, THE ADVANCES, THE SPECIAL RATE LOANS OR THE ACTIONS OF
THE BORROWER, THE CO-ARRANGERS, THE ADMINISTRATIVE AGENT, THE
OTHER CO-AGENTS OR ANY BANK IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 8.10. Treatment of Certain Information;
Confidentiality. (a) The Borrower acknowledges that from time
to time financial advisory, investment banking and other services
may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by
any Bank or by one or more subsidiaries or affiliates of such
Bank and the Borrower hereby authorizes each Bank to share any
information delivered to such Bank by the Borrower and its
Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Bank to enter into this Agreement, with any
such subsidiary or affiliate, it being understood that any such
subsidiary or affiliate receiving such information shall be bound
by the provisions of paragraph (b) below as if it were a Bank
hereunder. Such authorization shall survive the repayment of the
Advances and Special Rate Loans and the termination of the
Commitments.
(b) Each Bank and the Administrative Agent agrees that
it will not disclose without the prior consent of the Borrower
(other than to its affiliates and to its and its affiliates'
directors, employees, auditors and counsel who are informed of
and agree to respect the confidential nature of such information,
and then only on a "need to know" basis in connection with this
Agreement, the Tender Offer or the financing thereof) any
information (the "Information") with respect to the Borrower (or
its business), CNW or the Tender Offer which is furnished by or
on behalf of the Borrower to such Bank or to the Administrative
Agent in connection with this Agreement, the Tender Offer or the
financing thereof; provided, that the Banks and the
Administrative Agent may disclose any such Information (i) that
is or has become generally available to the public (other than as
a result of a disclosure in violation of this Section 8.10 or the
letter referred to in Section 8.10(e)) or is or becomes available
to the Banks and the Administrative Agent on a non-confidential
basis from a source other than the Borrower or its agents
(unless, to the actual knowledge of the recipient Bank or the
Administrative Agent, such information was provided by such
source in violation of a confidentiality agreement), (ii) as may
be required or appropriate in response to any summons or subpoena
or in connection with any litigation, (iii) in order to comply
with any applicable law or regulation, or in accordance with any
order, ruling or regulatory practice of any bank regulatory
agency (including, without limitation, the Board of Governors of
the Federal Reserve System or any foreign bank regulatory agency)
having or claiming jurisdiction over the relevant Bank or the
Administrative Agent, and (iv) to a proposed assignee or
participant in connection with any proposed assignment or
participation permitted under Section 8.07 as provided in
Section 8.07(f), provided that such proposed assignee or
participant agrees in writing to be bound by the confidentiality
provisions of this Section 8.10.
(c) In the event that any Bank or any Person receiving
Information from such Bank becomes legally compelled to disclose
any of the Information or the existence of this Agreement (other
than to any bank regulatory agency referred to in
Section 8.10(b)(iii) in the course of customary audits of the
relevant Bank), such Bank shall provide the Borrower with notice
of such event promptly upon obtaining knowledge thereof (provided
that such notice is not otherwise prohibited by law) so that the
Borrower may seek a protective order or other appropriate remedy.
In the event that such protective order or other remedy is not
obtained, such Bank shall furnish only that portion of the
Information which in its reasonable opinion it is legally
required to disclose and shall disclose such Information in a
manner reasonably designed to preserve its confidential nature.
(d) Each Bank acknowledges that disclosure of
Information in violation of this Section 8.10 could have serious
consequences, and agrees that, in the event of any breach of this
Section 8.10 by any Bank or its representatives, the Borrower
will be entitled to equitable relief (including injunctive relief
and specific performance) in addition to all other remedies
available to it at law or in equity.
(e) The obligations of each Bank under this
Section 8.10 shall supersede and replace the obligations of such
Bank under the confidentiality letter executed by it in respect
of this financing prior to the date hereof, and the
confidentiality obligations of any proposed assignee that has
executed a confidentiality letter prior to the date on which it
becomes a Bank hereunder pursuant to Section 8.07(a) shall be
superseded by this Section 8.10 upon the date upon which such
assignee becomes a Bank.
(f) Each Bank's obligations and all of the Borrower's
rights and remedies under this Section 8.10 shall survive any
reduction in the Commitments, the termination of this Agreement
or the return or destruction of the Information, in each case
until the date one year after the termination of this Agreement.
SECTION 8.11. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 8.12. Indemnification. (a) The Borrower
agrees to indemnify and hold harmless the Administrative Agent,
each other Co-Agent, each Co-Arranger and each Bank and each of
their respective officers, directors, employees, agents, advisors
and representatives (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, fees and disbursements
of counsel), joint or several, that may be incurred by or
asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or relating to any
investigation, litigation or proceeding or the preparation of any
defense with respect thereto, arising out of or in connection
with or relating to this Agreement or the transactions
contemplated hereby (including without limitation the Tender
Offer) or any use made or proposed to be made with the proceeds
of the Advances or Special Rate Loans, whether or not such
investigation, litigation or proceeding is brought by the
Borrower, any of its Subsidiaries, shareholders or creditors, an
Indemnified Party or any other Person, or an Indemnified Party is
otherwise a party thereto, and whether or not the transactions
contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense (i) results from such
Indemnified Party's gross negligence or wilful misconduct or (ii)
arises out of a final, non-appealable judgment against such
Indemnified Party in favor of the Borrower on the basis of a
breach of this Agreement. The foregoing indemnification shall
not cover any such claims, damages, losses, liabilities or
expenses relating to (i) any income, stamp or other taxes,
imports, duties, charges, fees, deductions or withholdings
imposed, levied, collected, withheld or assessed by the United
States or any political subdivision or taxing authority thereof
or therein (including Puerto Rico) or of the country in which any
Bank's principal office or Applicable Lending Office may be
located or any political subdivision or taxing authority thereof
or therein; (ii) any costs (whenever imposed) to any Bank of
agreeing to make or making, funding or maintaining any Advances
or Special Rate Loans; or (iii) any capital required or expected
to be maintained by any Bank or any corporation controlling such
Bank as a result of such Bank's Commitment or its Advances or
Special Rate Loans, but in each case without prejudice to
Sections 2.02(b), 2.11, 2.12, 2.15 and 8.04.
(b) The Borrower agrees that no Indemnified Party
shall have any liability (whether direct or indirect, in
contract, tort or otherwise) to the Borrower or any of its
Subsidiaries, shareholders or creditors or any other Person for
or in connection with the transactions contemplated hereby,
except to the extent such liability is found in a final non-
appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or wilful
misconduct; provided that nothing in this clause (b) shall be
deemed to constitute a waiver of any claim the Borrower may
hereafter have for breach by any party of this Agreement; and
provided, further, that in no event shall any Indemnified Party
be liable for any indirect or consequential damages.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
UNION PACIFIC CORPORATION
By /s/ Robert M. Knight, Jr.
Name: Robert M. Knight, Jr.
Title: Assistant Treasurer
Administrative Agent
CHEMICAL BANK, as Administrative
Agent
By /s/ Julie S. Long
Name: Julie S. Long
Title: Vice President
Documentation Agent
CITIBANK, N.A., as Documentation
Agent
By /s/
Name:
Title: Attorney-in-Fact
Syndication Agent
CHEMICAL SECURITIES, INC., as
Syndication Agent
By /s/ Evelyn M. Aloise
Name: Evelyn M. Aloise
Title:
CO-ARRANGERS
CHEMICAL BANK, as Co-Arranger
By /s/ Julie S. Long
Name: Julie S. Long
Title: Vice President
CITICORP SECURITIES, INC., as
Co-Arranger
By /s/
Name:
Title: V.P.
COMMITMENT BANKS
$67,826,087.00 CHEMICAL BANK
By /s/ Julie S. Long
Name: Julie S. Long
Title: Vice President
$67,826,087.00 CITIBANK, N.A.
By /s/
Name:
Title: Attorney-in-Fact
$52,173,913.04 ABN AMRO BANK N.V., NEW YORK BRANCH
By /s/ John W. Deegan
Name: John W. Deegan
Title: V.P.
By /s/ Olga L. Zoutendijk
Name: Olga L. Zoutendijk
Title: V.P.
$52,173,913.04 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Bridget A. Garavalia
Name: Bridget A. Garavalia
Title: Vice President
By___________________________
Name:
Title:
$52,173,913.04 BANK OF MONTREAL
By /s/ David J. Thompson
Name: David J. Thompson
Title: Director
$52,173,913.04 THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION)
By /s/ F.M. Cox, III
Name: F.M. Cox, III
Title: Vice President
$52,173,913.04 CREDIT SUISSE
By /s/ Eileen O'Connell Fox
Name: Eileen O'Connell Fox
Title: Member of Senior
Management
By /s/ Christopher J. Eldin
Name: Christopher J. Eldin
Title: Member of Senior
Management
$52,173,913.04 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Gerald F. Mackin
Name: Gerald F. Mackin
Title: Vice President
$52,173,913.04 MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ Laura E. Reim
Name: Laura E. Reim
Title: Vice President
$52,173,913.04 NATIONAL WESTMINSTER BANK PLC, NEW
YORK BRANCH
By /s/ Anne Marie Torre
Name: Anne Marie Torre
Title: Vice President
$52,173,913.04 NATIONSBANK, N.A. (CAROLINAS)
By /s/ Michael D. Monte
Name: Michael D. Monte
Title: Vice President
$52,173,913.04 UNION BANK OF SWITZERLAND
By /s/ Daniel H. Perron
Name: Daniel H. Perron
Title: Vice President
By /s/ Daniel R. Strickford
Name: Daniel R. Strickford
Title: Assistant Treasurer
$41,739,130.43 THE BANK OF TOKYO TRUST COMPANY
By /s/
Name:
Title: Vice President
$41,739,130.43 CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Mary E. Collier
Name: Mary E. Collier
Title: Vice President
$41,739,130.43 THE INDUSTRIAL BANK OF JAPAN
LIMITED NEW YORK BRANCH
By /s/ John Veltri
Name: Mr. John Veltri
Title: Senior Vice President
$41,739,130.43 MELLON BANK, N.A.
By /s/ Donald G. Cassidy
Name: Donald G. Cassidy
Title: First Vice President
$41,739,130.43 PNC BANK, NATIONAL ASSOCIATION
By /s/ Robert Q. Reilly
Name: Robert Q. Reilly
Title: Vice President
$41,739,130.43 SOCIETE GENERALE
By /s/ Jan Wertlieb
Name: Jan Wertlieb
Title: Vice President
$41,739,130.43 THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By /s/ Y. Kawamura
Name: Y. Kawamura
Title: Joint General Manager
$41,739,130.43 TORONTO DOMINION (NEW YORK), INC.
By /s/ Jorge Garcia
Name: Jorge Garcia
Title: Vice President
$26,086,956.52 THE BANK OF CALIFORNIA, N.A.
By /s/ Harry S. Matthews
Name: Harry S. Matthews
Title: Vice President
$26,086,956.52 THE BANK OF NEW YORK
By /s/ Michael V. Flannery, Jr.
Name: Michael V. Flannery, Jr.
Title: Vice President
$26,086,956.52 BANQUE NATIONALE DE PARIS
By /s/ Walter Kaplan
Name: Walter Kaplan
Title: Vice President
By /s/ Phil Truesdale
Name: Phil Truesdale
Title: Vice President
$26,086,956.52 THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Robert Gallagher
Name: Robert Gallagher
Title: Assistant V.P.
$26,086,956.52 THE NORTHERN TRUST COMPANY
By /s/ J. Chip McCall
Name: J. Chip McCall
Title: Second Vice President
$26,086,956.52 ROYAL BANK OF CANADA
By /s/ Michael J. Madnick
Name: Michael J. Madnick
Title: Manager
$26,086,956.52 THE YASUDA TRUST AND BANKING
COMPANY LIMITED
By /s/ Rohn M. Laudenschlager
Name: Rohn M. Laudenschlager
Title: Senior Vice President
$13,043,478.26 THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By____________________________
Name:
Title:
$13,043,478.26 CRESTAR BANK
By /s/ J. F. Jayle, Jr.
Name: J.F. Jayle, Jr.
Title: Senior Vice President
SCHEDULE I
UNION PACIFIC CORPORATION
Domestic Eurodollar
Name of Bank Lending Office CD Lending Office Lending Office
Chemical Bank 270 Park Avenue Same as Domestic Same as Domestic
New York, New York Lending Office Lending Office
10172
Citibank, N.A. 399 Park Avenue Same as Domestic Same as Domestic
New York, New York Lending Office Lending Office
10043
ABN Amro Bank N.V., 500 Park Avenue Same as Domestic Same as Domestic
New York New York, New York Lending Office Lending Office
Branch 10022
Bank of America 1850 Gateway Same as Domestic Same as Domestic
National Trust Boulevard Lending Office Lending Office
and Savings Concord, California
Association 94520
Bank of Montreal 115 South LaSalle Same as Domestic Same as Domestic
Street Lending Office Lending Office
Chicago, Illinois
60603
The Chase Manhattan One Chase Manhattan Same as Domestic Same as Domestic
Bank Plaza Lending Office Lending Office
(National New York, New York
Association) 10081
Credit Suisse 12 East 49th Same as Domestic Same as Domestic
Street, Lending Office Lending Office
42nd Floor
New York, New York
10017
The First National One First National Same as Domestic Same as Domestic
Bank of Plaza Lending Office Lending Office
Chicago Chicago, Illinois
60670
Morgan Guaranty 60 Wall Street Same as Domestic Morgan Guaranty
Trust Company New York, New York Lending Office Trust Company
of New York 10260 of New York
Nassau Bahamas
Office
c/o J. P. Morgan
Services Inc.
Euro-Loan
Servicing Unit
500 Stanton
Christiana Road
Newark, Delaware
19713
National Westminster 175 Water Street, Same as Domestic Nassau Branch
Bank Plc, 19th Floor Lending Office 175 Water Street
New York Branch New York, NY 10038- New York, NY
4924 10038-4924
NationsBank, N.A. 100 North Tryon Same as Domestic Same as Domestic
(Carolinas) Street, Lending Office Lending Office
8th Floor
Charlotte, NC
28255
Union Bank of 299 Park Avenue Same as Domestic Same as Domestic
Switzerland New York, New York Lending Office Lending Office
10171
The Bank of Tokyo 1251 Avenue of the Same as Domestic Same as Domestic
Trust Americas Lending Office Lending Office
Company New York, New York
10116
Credit Lyonnais New 1301 Avenue of the Credit Lyonnais Same as CD
York Americas Cayman Island Lending Office
Branch New York, NY 10019 Branch
c/o Credit Lyonnais
New York Branch
1301 Avenue of the
Americas
New York, NY 10019
The Industrial Bank 245 Park Avenue Same as Domestic Same as Domestic
of Japan New York, NY Lending Office Lending Office
Limited New York 10167-0037
Branch
Mellon Bank, N.A. 7th and Market Same as Domestic Same as Domestic
Streets Lending Office Lending Office
Loan Administration
Room 199-5220
Philadelphia, PA
19106
Attn: Dawn Rudd
PNC Bank, National 100 South Broad Same as Domestic Same as Domestic
Association Street Lending Office Lending Office
Philadelphia, PA
19110
Societe Generale 1221 Avenue of the Same as Domestic Same as Domestic
Americas Lending Office Lending Office
New York, New York
10020
The Sumitomo Bank, 277 Park Avenue Same as Domestic Same as Domestic
Limited, New York, New York Lending Office Lending Office
New York Branch 10172
Toronto Dominion 909 Fannin, Suite Same as Domestic Same as Domestic
(New York), 1700 Lending Office Lending Office
Inc. Houston, TX 77010
The Bank of 400 California Same as Domestic Same as Domestic
California, N.A. Street, Lending Office Lending Office
17th Floor
San Francisco, CA
94104
The Bank of New York One Wall Street Same as Domestic Same as Domestic
New York, New York Lending Office Lending Office
10286
Banque Nationale de 499 Park Avenue Same as Domestic Banque Nationale
Paris New York, New York Lending Office de Paris --
10022 Georgetown
499 Park Avenue
New York,
New York 10022
The Dai-Ichi Kangyo 1 World Trade Same as Domestic Same as Domestic
Bank, Ltd. Center Lending Office Lending Office
Suite 4911
New York, New York
10048
The Northern Trust 50 South LaSalle Same as Domestic Same as Domestic
Company Street Lending Office Lending Office
Chicago, Illinois
60675
Royal Bank of Canada 1 Financial Square, Same as Domestic Same as Domestic
Lending Office Lending Office
Corporate Bkg.
East, USA
New York, New York
10005
The Yasuda Trust and 666 Fifth Avenue, Same as Domestic Same as Domestic
Banking Suite 801 Lending Office Lending Office
Company Limited New York, New York
10103
The Boatmen's One Boatmen's Plaza Same as Domestic Same as Domestic
National Bank of 800 Market Street Lending Office Lending Office
St. Louis St. Louis, MO
63166-0236
Crestar Bank 919 East Main Same as Domestic Same as Domestic
Street Lending Office Lending Office
Richmond, Virginia
23219
SCHEDULE II
Union Pacific Corporation
List of Existing Mortgages
None.
EXHIBIT A-1
Notice of Contract Borrowing
[Date]
Chemical Bank, as Administrative
Agent for the Banks parties
to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Attention:
Gentlemen:
The undersigned, Union Pacific Corporation, refers to
the $1,200,000,000 Revolving Credit Agreement, dated as of
April 11, 1995 (as amended, the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the
undersigned, certain Banks, Co-Arrangers and Co-Agents parties
thereto and Chemical Bank, as Administrative Agent for said
Banks, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Contract Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such
Contract Borrowing (the "Proposed Contract Borrowing") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Contract
Borrowing is _________________, 19__.
(ii) The Type of Contract Advances comprising the
Proposed Contract Borrowing is [Adjusted CD Rate Advances]
[Alternate Base Rate Advances] [Eurodollar Rate Contract
Advances].
(iii) The aggregate amount of the Proposed Contract
Borrowing is $_____________.
(iv) The Interest Period for each Contract Advance made
as part of the Proposed Contract Borrowing is [___ days]
[__ months[s]].
Very truly yours,
UNION PACIFIC CORPORATION
By: _____________________
Title:
EXHIBIT A-2
Notice of Auction Borrowing
[Date]
Chemical Bank, as Administrative
Agent for the Banks parties
to the Credit Agreement
referred to below
270 Park Avenue
New York, New York 10017
Attention:
Gentlemen:
The undersigned, Union Pacific Corporation, refers to
the $1,200,000,000 Revolving Credit Agreement, dated as of
April 11, 1995 (as amended, the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the
undersigned, certain Banks, Co-Arrangers and Co-Agents parties
thereto and Chemical Bank, as Administrative Agent for said
Banks, and hereby gives you notice pursuant to Section 2.03 of
the Credit Agreement that the undersigned hereby requests an
Auction Borrowing under the Credit Agreement, and in that
connection sets forth the terms on which such Auction Borrowing
(the "Proposed Auction Borrowing") is requested to be made:
1. Date of Auction Borrowing _________________
2. Type of Auction Advances
comprising the Proposed
Auction Borrowing
(Eurodollar Rate Auction
Advance or Fixed Rate
Auction Advance) _________________
3. Amount of Auction Borrowing _________________
4. Maturity Date _________________
5. Interest Payment Date(s) _________________
6. Prepayment Provisions _________________
7. _______________________ _________________
8. _______________________ _________________
Very truly yours,
UNION PACIFIC CORPORATION
By: _______________________
Title:
EXHIBIT B
Assignment and Acceptance
Dated ________________, 19__
Reference is made to the $1,200,000,000 Revolving
Credit Agreement, dated as of April 11, 1995 (as amended, the
"Credit Agreement"), among Union Pacific Corporation, a Utah
corporation (the "Borrower"), the Banks, Co-Arrangers and Co-
Agents (each as defined in the Credit Agreement) and Chemical
Bank, as Administrative Agent for the Banks (the "Administrative
Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
___________________ (the "Assignor") and
___________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse and without any representations and
warranties of the Assignor except as specifically set forth
below, and the Assignee hereby purchases and assumes from the
Assignor, a portion of the Assignor's rights and obligations
under the Credit Agreement as of the Effective Date (as defined
below) equal to a _____%(1) interest in and to all of the rights
and obligations of the Banks under the Credit Agreement
(including, without limitation, such percentage interest in the
Commitments as in effect on the Effective Date and the [Contract]
Advances [and Special Rate Loans](2), if any, outstanding on the
Effective Date).
2. The Assignor (i) represents and warrants that as of
the date hereof its Commitment (without giving effect to
assignments thereof which have not yet become effective) is
$_________ and the aggregate outstanding principal amount of
[Contract] Advances [and Special Rate Loans]2 owing to it
(without giving effect to assignments thereof which have not yet
become effective) is $____________; (ii) represents and warrants
that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear
of any adverse claim; (iii) makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto; (iv) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or any other Person or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such
other documents and information as it has deemed appropriate to
_____________________
1 Specify percentage to no more than four decimal points.
2 Include if Special Rate Loans are to be assigned.
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent,
any other Co-Agent, either Co-Arranger, the Assignor or any other
Bank 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 action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it
as a Bank; and (vi) specifies as its CD Lending Office, Domestic
Lending Office (and address for notices) and Eurodollar Lending
Office the offices set forth beneath its name on the signature
pages hereof.
4. The effective date for this Assignment and
Acceptance shall be ______________________ (the "Effective
Date").(3) Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent.
5. Upon such acceptance and recording, as of the
Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement, except as
expressly provided therein.
6. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement in respect of the interest
assigned hereby (including, without limitation, all payments of
principal, interest and fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods
prior to the Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
[NAME OF ASSIGNOR]
By: _______________________
Title:
3 See Section 8.07(a) of the Credit Agreement. Such date
shall be at least three Business Days after the
execution of this Assignment and Acceptance.
[NAME OF ASSIGNEE]
By: _______________________
Title:
Domestic Lending Office (and
address for notices):
[Address]
CD Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ____ day
of ______________, 19__
CHEMICAL BANK, as Administrative
Agent
By: _____________________
Title:
EXHIBIT C
[FORM OF OPINION OF COUNSEL FOR THE BORROWER]
___________ __, 199__
To each of the Banks party to the
$1,200,000,000 Revolving Credit
Agreement, dated as of
April 11, 1995, among Union
Pacific Corporation, certain
Co-Arrangers and Co-Agents, said Banks,
and Chemical Bank, as Administrative
Agent for said Banks;
To Chemical Bank and Citicorp
Securities, Inc., as Co-Arrangers;
To Chemical Securities, Inc., as
Syndication Agent;
To Citibank, N.A., as Documentation
Agent; and
To Chemical Bank, as Administrative Agent
I am the Assistant General Counsel of Union Pacific
Corporation, a Utah corporation (the "Borrower"), and have acted
in such capacity in connection with the execution and delivery of
the $1,200,000,000 Revolving Credit Agreement, dated as of
April 11, 1995 (the "Agreement"), among the Borrower, certain Co-
Arrangers and Co-Agents, the banks parties thereto and Chemical
Bank, as Administrative Agent.
This opinion is delivered to you pursuant to
subsection 3.01(c) of the Agreement. Terms used herein which are
defined in the Agreement shall have the respective meanings set
forth in the Agreement, unless otherwise defined herein.
In connection with this opinion, I have examined
executed copies of the Agreement and such corporate documents and
records of the Borrower and its Subsidiaries, certificates of
public officials and officers of the Borrower and its
Subsidiaries, and such other documents, as I have deemed
necessary or appropriate for the purposes of this opinion. In
stating my opinion, I have assumed the genuineness of all
signatures of, and the authority of, persons signing the
Agreement on behalf of parties thereto other than the Borrower,
the authenticity of all documents submitted to me as originals
and the conformity to authentic original documents of all
documents submitted to me as certified, conformed or photostatic
copies.
Based upon the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Utah.
2. The execution, delivery and performance by the
Borrower of the Agreement are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower's charter or by-
laws or (ii) any law, statute, regulation or order of any
governmental agency or (iii) to the best of my knowledge, any
contractual restriction binding on or affecting the Borrower.
The Agreement has been duly executed and delivered by the
Borrower.
3. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by the Borrower of the Agreement.
4. The Agreement is a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors
generally and except as the enforceability of the Agreement is
subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at
law), including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
5. There is no pending or threatened action or
proceeding affecting the Borrower or any of its consolidated
Subsidiaries before any court, governmental agency or arbitrator,
(i) which purports to affect the legality, validity or
enforceability of the Agreement, or (ii) which may materially
adversely affect the consummation of the Tender Offer, or (iii)
except as set forth in the Borrower's annual report on Form 10-K
for the fiscal year ended December 31, 1994, which may materially
adversely affect the financial condition or operations of the
Borrower or any of its Subsidiaries, taken as a whole.
The foregoing opinions are subject to the following
comments and qualifications:
(A) The enforceability of Section 8.12 of the
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws
and the public policy underlying such laws and (ii) laws
limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party
for, liability for its own action or inaction, to the extent
the action or inaction involved gross negligence,
recklessness, wilful misconduct or unlawful conduct.
(B) The enforceability of provisions in the Agreement
to the effect that terms may not be waived or modified
except in writing may be limited under certain
circumstances.
(C) I express no opinion as to (i) the effect of the
laws of any jurisdiction in which any Bank is located (other
than the State of New York) that limit the interest, fees,
or other charges such Bank may impose, (ii) the last
sentence of Section 2.16 of the Agreement, (iii) the first
sentence of Section 8.09 of the Agreement, insofar as such
sentence relates to the subject matter jurisdiction of the
United States District Court for the Southern District of
New York to adjudicate any controversy relating to the
Agreement, and (iv) the waiver of inconvenient forum set
forth in Section 8.09 of the Agreement with respect to
proceedings in federal courts.
I am a member of the Bar of the State of New York and
do not purport to be an expert on any laws other than the laws of
the State of New York and the federal laws of the United States
of America, and except as provided in the next sentence, this
opinion is limited to the present law of such State and the
present federal law of the United States of America. To the
extent that this opinion relates to matters under the laws of the
State of Utah, I have relied on the opinion of Steven A.
Goodsell, Esq., the General Solicitor in Utah for Union Pacific
Railroad Company and Utah counsel for the Borrower, a copy of
which is attached hereto. Such opinion is satisfactory in form
and substance to me and I believe that you and I are justified in
relying thereon.
Very truly yours,
EXHIBIT D
[FORM OF OPINION OF SPECIAL
NEW YORK COUNSEL TO THE ADMINISTRATIVE AGENT]
April [__], 1995
To each of the Banks party to the
$1,200,000,000 Revolving Credit
Agreement, dated as of
April 11, 1995, among Union
Pacific Corporation, certain
Co-Arrangers and Co-Agents, said Banks,
and Chemical Bank, as Administrative
Agent for said Banks;
To Chemical Bank and Citicorp
Securities, Inc., as Co-Arrangers;
To Chemical Securities, Inc., as
Syndication Agent;
To Citibank, N.A., as Documentation
Agent; and
To Chemical Bank, as Administrative Agent
Re: Union Pacific Corporation
Ladies and Gentlemen:
We have acted as special New York counsel to Chemical
Bank ("Chemical Bank") as Administrative Agent (as hereinafter
defined) in connection with the Revolving Credit Agreement dated
as of April 11, 1995 (the "Credit Agreement") among Union Pacific
Corporation (the "Borrower"), the banks named therein (the
"Banks"), Chemical Bank and Citicorp Securities, Inc., as Co-
Arrangers (collectively, the "Co-Arrangers"), Chemical
Securities, Inc., as Syndication Agent (the "Syndication Agent")
Citibank, N.A., as Documentation Agent (the "Documentation
Agent"), and Chemical Bank, as administrative agent for the Banks
(in such capacity, the "Administrative Agent"), providing for
loans to be made by the Banks to the Borrower in an aggregate
principal amount not exceeding $1,200,000,000. Terms defined in
the Credit Agreement are used herein as defined therein. This
opinion letter is being delivered pursuant to Section 3.01(d) of
the Credit Agreement.
In rendering the opinions expressed below, we have
examined the following documents, each of which, unless otherwise
indicated, is dated the date hereof:
(1) A counterpart of the Credit Agreement executed by
the Borrower and the Administrative Agent (we have been
informed by the Administrative Agent that each Co-Arranger,
each Co-Agent and each Bank has executed at least one
counterpart of the Credit Agreement).
(2) A certificate of the Assistant Secretary of the
Borrower with respect to (i) certain resolutions adopted by
the Board of Directors of the Borrower, (ii) the Revised
Articles of Incorporation and the By-laws of the Borrower
and (iii) the incumbency and signatures of certain officers
of the Borrower, delivered pursuant to Sections 3.01(a) and
3.01(b) of the Credit Agreement.
(3) An opinion of Richard T. Ressler, Esq., Assistant
General Counsel of the Borrower, delivered pursuant to
Section 3.01(c) of the Credit Agreement.
(4) Such records of the Borrower and such other
documents as we have deemed necessary as a basis for the
opinions expressed below.
In our examination, we have assumed (x) the genuineness
of all signatures, the authenticity of all documents submitted to
us as originals and the conformity with authentic original
documents of all documents submitted to us as copies, and
(y) that no action, consent or approval of, or registration or
filing with, or any other action by, any governmental authority
is or will be required in connection with the transactions
contemplated by the Credit Agreement, except such as have been
made or obtained and are in full force and effect. When relevant
facts were not independently established, we have relied upon
representations made in or pursuant to the Credit Agreement.
In rendering the opinions expressed below, we have
assumed, with respect to all of the documents referred to in this
opinion letter, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and (except
to the extent set forth in the opinions below as
to the Borrower) constitute legal, valid, binding
and enforceable obligations of, all of the parties
to such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power
and authority (corporate or other) to execute,
deliver and perform such documents.
Based upon and subject to the foregoing and subject
also to the comments and qualifications set forth below, having
considered such questions of law as we have deemed necessary as a
basis for the opinions expressed below, and although we have not
independently considered the matters covered by the opinion
listed in item (3) above to the extent necessary to enable us to
express the conclusions stated therein, we are of the opinion
that:
(i) the certificates and opinion referred to in items
(2) and (3) above, respectively, appear to be substantially
responsive to the requirements of Section 3.01 of the Credit
Agreement; and
(ii) the Credit Agreement constitutes the legal, valid
and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
the rights of creditors generally and except as the
enforceability of the Credit Agreement is subject to the
application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following
comments and qualifications:
(A) The enforceability of Section 8.12 of the Credit
Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws
and the public policy underlying such laws and (ii) laws
limiting the enforceability of provisions exculpating or
exempting a party, or requiring indemnification of a party
for, liability for its own action or inaction, to the extent
the action or inaction involves gross negligence,
recklessness, wilful misconduct or unlawful conduct.
(B) The enforceability of provisions in the Credit
Agreement to the effect that terms may not be waived or
modified except in writing may be limited under certain
circumstances.
(C) We express no opinion as to (i) the effect of the
laws of any jurisdiction in which any Bank is located (other
than the State of New York) that limit the interest, fees or
other charges such Bank may impose, (ii) the last sentence
of Section 2.16 of the Credit Agreement, (iii) the first
sentence of Section 8.09 of the Credit Agreement, insofar as
such sentence relates to the subject matter jurisdiction of
the United States District Court for the Southern District
of New York to adjudicate any controversy related to the
Credit Agreement, and (iv) the waiver of inconvenient forum
set forth in Section 8.09 of the Credit Agreement with
respect to proceedings in federal courts.
The foregoing opinions are limited to matters involving
the Federal laws of the United States and the law of the State of
New York, and we do not express any opinion as to the laws of any
other jurisdiction.
At the request of our client, this opinion letter is,
pursuant to Section 3.01(d) of the Credit Agreement, provided to
you by us in our capacity as special New York counsel to the
Administrative Agent and may not be relied upon by any Person for
any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance,
our prior written consent.
Very truly yours,
WFC/PDR
