SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
(AMENDMENT NO. 6)
_______________
CONRAIL INC.
(Name of Subject Company)
CSX CORPORATION
GREEN ACQUISITION CORP.
(Bidders)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of Class of Securities)
208368 10 0
(CUSIP Number of Class of Securities)
SERIES A ESOP CONVERTIBLE JUNIOR
PREFERRED STOCK, WITHOUT PAR VALUE
(Title of Class of Securities)
NOT AVAILABLE
(CUSIP Number of Class of Securities)
MARK G. ARON
CSX CORPORATION
ONE JAMES CENTER
901 EAST CARY STREET
RICHMOND, VIRGINIA 23219-4031
TELEPHONE: (804) 782-1400
(Names, Addresses and Telephone Numbers of Persons Authorized
to Receive Notices and Communications on Behalf of Bidder)
With a copy to:
PAMELA S. SEYMON
WACHTELL, LIPTON, ROSEN & KATZ
51 WEST 52ND STREET
NEW YORK, NEW YORK 10019
TELEPHONE: (212) 403-1000
<PAGE>
This Statement amends and supplements the Tender Of-
fer Statement on Schedule 14D-1 filed with the Securities and
Exchange Commission (the "Commission") on October 16, 1996, as
previously amended and supplemented (the "Schedule 14D-1"), by
Green Acquisition Corp. ("Purchaser"), a Pennsylvania corpo-
ration and a wholly owned subsidiary of CSX Corporation, a Vir-
ginia corporation ("Parent"), to purchase an aggregate of
17,860,124 shares of (i) Common Stock, par value $1.00 per
share (the "Common Shares"), and (ii) Series A ESOP Convertible
Junior Preferred Stock, without par value (together with the
Common Shares, the "Shares"), of Conrail Inc., a Pennsylvania
corporation (the "Company"), including, in each case, the as-
sociated Common Stock Purchase Rights, upon the terms and sub-
ject to the conditions set forth in the Offer to Purchase,
dated October 16, 1996 (the "Offer to Purchase"), as supple-
mented by the Supplement thereto, dated November 6, 1996 (the
"Supplement"), and in the related Letters of Transmittal
(which, together with any amendments or supplements thereto,
constitute the "Offer") at a purchase price of $110.00 per
Share, net to the tendering shareholder in cash. Capitalized
terms used and not defined herein shall have the meanings as-
signed such terms in the Offer to Purchase, the Supplement and
the Schedule 14D-1.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Section 10 of the Offer to Purchase, as previously
amended and supplemented, is hereby amended and supplemented by
adding the following information:
Credit Agreement. In connection with the Offer
and the Merger, Parent has entered into a Credit
Agreement, dated as of November 15, 1996 (the "Credit
Agreement"), with Bank of America National Trust and
Savings Association and NationsBank, N.A., as Co-
Syndication Agents, The Bank of Nova Scotia, as Docu-
mentation Agent, The Chase Manhattan Bank, as Admin-
istrative Agent, and other lenders. The Credit
Agreement has become effective. The terms and condi-
tions of the Credit Agreement are, except as sum-
marized below, substantially similar to the terms and
conditions of the Commitment Letter, previously de-
scribed in Amendment No. 1 to the Schedule 14D-1 and
filed as exhibit (b)(1) thereto.
Changes from the terms and conditions reflected in
the Commitment Letter and the Term Sheet include:
(i) $800,000,000 of the Facility became available upon
the effectiveness of the Credit Agreement, and before the
consummation of the Offer, in order to replace at the time
of effectiveness Parent's existing credit facilities, (ii)
satisfac-<PAGE>
tion of the Initial Tender Offer Condition (as de-
fined in the Credit Agreement) will be a condition to
the availability of the remainder of the Facility,
(iii) the Facility includes a $50,000,000 letter of
credit subfacility, (iv) in the event any governmen-
tal approvals necessary for the Acquisition (as de-
fined in the Credit Agreement) are finally denied or
in the event Parent abandons the Acquisition, the
Commitments (as defined in the Credit Agreement) will
be reduced to an amount (to the extent that the Com-
mitments exceed such amount) equal to the Aggregate
Outstanding Extensions of Credit (as defined in the
Credit Agreement) plus the aggregate face amount of
outstanding commercial paper of Parent supported by
the Commitments (after giving ratable effect to any
other facilities of Parent then providing support for
such commercial paper) plus $1,500,000,000, (v) upon
the sale or other disposition of Shares by Parent or
any Subsidiary (as defined in the Credit Agreement)
(other than to Parent or any Subsidiary), the Commit-
ments shall be automatically reduced in an amount
equal to 100% of the cash proceeds net of certain
expenses from such sale or disposition (other than a
sale or disposition of Shares constituting Unre-
stricted Margin Stock (as defined in the Credit
Agreement)), (vi) sales of Shares constituting Unre-
stricted Margin Stock shall be in exchange for cash
or cash-equivalents only and the proceeds shall be
maintained in cash, cash-equivalents or short-term
investments except to the extent that the Commitments
are reduced by an equivalent amount and (vii) the
obligation of each Lender (as defined in the Credit
Agreement) to make extensions of Credit under the
Facility is conditioned upon, among other things, (a)
from and after the date of satisfaction of the Ini-
tial Tender Offer Condition, there being no pending
litigation or administrative proceedings or other
legal or regulatory developments (except with respect
to the pendency of STB approval or any administra-
tive, judicial or other contest relating to STB ap-
proval) with respect to the Acquisition that, in the
reasonable judgment of at least three of the Princi-
pal Agents, would be reasonably likely to prohibit
the Acquisition or to result in a Material Adverse
Effect (as defined in the Credit Agreement) and (b)
the receipt by the Principal Agents of a certificate
of a Parent officer stating that no such litigation,
proceeding or developments exist in such officer's
reasonable judgment.
-2-<PAGE>
The Credit Agreement is attached hereto as Exhibit (b)(2)
and is incorporated by reference herein, and the foregoing sum-
mary description is qualified in its entirety by reference to
such exhibit.
ITEM 10. ADDITIONAL INFORMATION.
(b) Section 16 of the Offer to Purchase, as previ-
ously amended and supplemented, is hereby amended and supple-
mented by adding the following information:
STB Matters; Acquisition of Control. On Novem-
ber 15, 1996, the STB issued a proposed schedule pur-
suant to which the STB would issue a final order 300
days from the filing of the application by Parent
seeking approval of the Merger. The STB's proposed
schedule is subject to a public comment process end-
ing on December 16, 1996, after which the STB is ex-
pected to issue a final schedule which may or may not
be identical to the proposed schedule.
-3-<PAGE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) -- Offer to Purchase, dated October 16, 1996.*
(a)(2) -- Letter of Transmittal.*
(a)(3) -- Notice of Guaranteed Delivery.*
(a)(4) -- Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
(a)(5) -- Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nom-
inees.*
(a)(6) -- Guidelines for Certification of Taxpayer Identi-
fication Number on Substitute Form W-9.*
(a)(7) -- Text of Press Release issued by Parent on Octo-
ber 15, 1996.*
(a)(8) -- Form of Summary Advertisement, dated October 16,
1996.*
(a)(9) -- Text of Press Release issued by Parent on Octo-
ber 22, 1996.*
(a)(10) -- Text of Press Release issued by Parent on Octo-
ber 23, 1996.*
(a)(11) -- Text of Press Release issued by Parent on Octo-
ber 30, 1996.*
(a)(12) -- Text of Press Release issued by Parent on Novem-
ber 3 1996.*
(a)(13) -- Supplement to Offer to Purchase, dated November
6, 1996.*
(a)(14) -- Revised Letter of Transmittal.*
(a)(15) -- Revised Notice of Guaranteed Delivery.*
(a)(16) -- Revised Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
_____________________
* Previously filed.
-4-<PAGE>
(a)(17) -- Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and
Other Nominees.*
(a)(18) -- Text of Press Release issued by Parent and the
Company on November 6, 1996.*
(a)(19) -- Text of Press Release issued by Parent and the
Company on November 13, 1996.*
(b)(1) -- Commitment Letter, dated October 21, 1996.*
(b)(2) -- Credit Agreement, dated November 15, 1996.
(c)(1) -- Agreement and Plan of Merger, dated as of Octo-
ber 14, 1996, by and among Parent, Purchaser and
the Company.*
(c)(2) -- Company Stock Option Agreement, dated as of Oc-
tober 14, 1996, between Parent and the Company.*
(c)(3) -- Parent Stock Option Agreement, dated as of Octo-
ber 14, 1996, between Parent and the Company.*
(c)(4) -- Form of Voting Trust Agreement.*
(c)(5) -- Complaint in Norfolk Southern Corporation, et
al. v. Conrail Inc., et al., No. 96-CV-7167,
filed on October 23, 1996.*
(c)(6) -- First Amended Complaint in Norfolk Southern Cor-
poration, et al. v. Conrail Inc., et al., No.
96-CV-7167, filed on October 30, 1996.*
(c)(7) -- First Amendment to Agreement and Plan of Merger,
dated as of November 5, 1996, by and among Par-
ent, Purchaser and the Company.*
-5-<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, the undersigned certifies that the information set
forth in this statement is true, complete and correct.
CSX CORPORATION
By: /s/ Mark G. Aron
Name: Mark G. Aron
Title: Executive Vice President-
Law and Public Affairs
Dated: November 18, 1996<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, the undersigned certifies that the information set
forth in this statement is true, complete and correct.
GREEN ACQUISITION CORP.
By: /s/Mark G. Aron
Name: Mark G. Aron
Title: General Counsel
and Secretary
Dated: November 18, 1996<PAGE>
EXHIBIT INDEX
Exhibit
No. Description
(a)(1) -- Offer to Purchase, dated October 16, 1996.*
(a)(2) -- Letter of Transmittal.*
(a)(3) -- Notice of Guaranteed Delivery.*
(a)(4) -- Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
(a)(5) -- Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nom-
inees.*
(a)(6) -- Guidelines for Certification of Taxpayer Identi-
fication Number on Substitute Form W-9.*
(a)(7) -- Text of Press Release issued by Parent on Octo-
ber 15, 1996.*
(a)(8) -- Form of Summary Advertisement dated October 16,
1996.*
(a)(9) -- Text of Press Release issued by Parent on Octo-
ber 22, 1996.*
(a)(10) -- Text of Press Release issued by Parent on Octo-
ber 23, 1996.*
(a)(11) -- Text of Press Release issued by Parent on Octo-
ber 30, 1996.*
(a)(12) -- Text of Press Release issued by Parent on Novem-
ber 3 1996.*
(a)(13) -- Supplement to Offer to Purchase, dated November
6, 1996.*
(a)(14) -- Revised Letter of Transmittal.*
(a)(15) -- Revised Notice of Guaranteed Delivery.*
(a)(16) -- Revised Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
_____________________
* Previously filed.<PAGE>
(a)(17) -- Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and
Other Nominees.*
(a)(18) -- Text of Press Release issued by Parent and the
Company on November 6, 1996.*
(a)(19) -- Text of Press Release issued by Parent and the
Company on November 13, 1996.*
(b)(1) -- Commitment Letter, dated October 21, 1996.*
(b)(2) -- Credit Agreement, dated November 15, 1996.
(c)(1) -- Agreement and Plan of Merger, dated as of Octo-
ber 14, 1996, by and among Parent, Purchaser and
the Company.*
(c)(2) -- Company Stock Option Agreement, dated as of Oc-
tober 14, 1996, between Parent and the Company.*
(c)(3) -- Parent Stock Option Agreement, dated as of Octo-
ber 14, 1996, between Parent and the Company.*
(c)(4) -- Form of Voting Trust Agreement.*
(c)(5) -- Complaint in Norfolk Southern Corporation, et
al. v. Conrail Inc., et al., No. 96-CV-7167,
filed on October 23, 1996.*
(c)(6) -- First Amended Complaint in Norfolk Southern Cor-
poration, et al. v. Conrail Inc., et al., No.
96-CV-7167, filed on October 30, 1996.*
(c)(7) -- First Amendment to Agreement and Plan of Merger,
dated as of November 5, 1996, by and among Par-
ent, Purchaser and the Company.*
-2-
EXHIBIT (b)(2)
EXECUTION COPY
CSX CORPORATION
$4,800,000,000
REVOLVING CREDIT AND
COMPETITIVE ADVANCE FACILITY
November 15, 1996
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
NATIONSBANK, N.A.
as Co-Syndication Agents
THE BANK OF NOVA SCOTIA
as Documentation Agent
THE CHASE MANHATTAN BANK
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions........................ 1
SECTION 1.01. Defined Terms.............................. 1
SECTION 1.02. Classification of Loans and Borrowings..... 15
SECTION 1.03. Terms Generally............................ 15
SECTION 1.04. Accounting Terms; GAAP..................... 16
ARTICLE II
The Credits....................... 16
SECTION 2.01. Commitments................................ 16
SECTION 2.02. Loans and Borrowings....................... 16
SECTION 2.03. Requests for Revolving Borrowings.......... 17
SECTION 2.04. Competitive Bid Procedure.................. 18
SECTION 2.05. Letters of Credit.......................... 20
SECTION 2.06. Funding of Borrowings...................... 24
SECTION 2.07. Interest Elections......................... 25
SECTION 2.08. Expiration, Termination and Reduction
of Commitments........................... 26
SECTION 2.09. Repayment of Loans; Evidence of Debt....... 27
SECTION 2.10. Optional and Mandatory Prepayment of Loans 28
SECTION 2.11. Fees....................................... 29
SECTION 2.12. Interest................................... 30
SECTION 2.13. Alternate Rate of Interest................. 31
SECTION 2.14. Increased Costs............................ 31
SECTION 2.15. Break Funding Payments..................... 33
SECTION 2.16. Taxes...................................... 33
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...................... 34
SECTION 2.18. Mitigation Obligations; Replacement
of Lenders............................... 36
ARTICLE III
Representations and Warranties............. 37
SECTION 3.01. Organization; Powers....................... 37
SECTION 3.02. Authorization; Enforceability.............. 37
SECTION 3.03. Governmental Approvals; No Conflicts....... 37
SECTION 3.04. Financial Condition; No Material
Adverse Change........................... 38
SECTION 3.05. Properties................................. 38
i<PAGE>
Page
SECTION 3.06. Litigation and Environmental Matters....... 38
SECTION 3.07. Compliance with Laws and Agreements........ 38
SECTION 3.08. Investment and Holding Company Status...... 39
SECTION 3.09. Taxes...................................... 39
SECTION 3.10. ERISA...................................... 39
SECTION 3.11. Disclosure................................. 39
SECTION 3.12. Existing Credit Facilities................. 39
ARTICLE IV
Conditions........................ 39
SECTION 4.01. Effective Date............................. 39
SECTION 4.02. Each Credit Event.......................... 40
ARTICLE V
Affirmative Covenants.................. 41
SECTION 5.01. Financial Statements and Other
Information.............................. 41
SECTION 5.02. Notices of Material Events................. 43
SECTION 5.03. Existence; Conduct of Business............. 43
SECTION 5.04. Payment of Obligations..................... 44
SECTION 5.05. Maintenance of Properties; Insurance....... 44
SECTION 5.06. Books and Records; Inspection Rights....... 44
SECTION 5.07. Compliance with Laws....................... 44
SECTION 5.08. Use of Proceeds, Commitments and
Letters of Credit........................ 44
SECTION 5.09. Federal Regulations........................ 44
ARTICLE VI
Negative Covenants.................... 45
SECTION 6.01. Limitation on Share Purchase Debt.......... 45
SECTION 6.02. Limitation on Subsidiary Debt.............. 45
SECTION 6.03. Liens...................................... 45
SECTION 6.04. Limitation on Sale/Leaseback
Transactions............................. 46
SECTION 6.05. Fundamental Changes........................ 47
SECTION 6.06. Financial Covenant......................... 48
SECTION 6.07. Ownership of Railroad Subsidiaries......... 48
SECTION 6.08. Sales of Unrestricted Margin Stock......... 48
ARTICLE VII
Events of Default.................... 48
ii<PAGE>
Page
ARTICLE VIII
The Agents........................ 50
ARTICLE IX
Miscellaneous...................... 52
SECTION 9.01. Notices.................................... 52
SECTION 9.02. Waivers; Amendments........................ 53
SECTION 9.03. Expenses; Indemnity; Damage Waiver......... 54
SECTION 9.04. Successors and Assigns..................... 55
SECTION 9.05. Survival................................... 57
SECTION 9.06. Counterparts; Integration; Effectiveness .. 57
SECTION 9.07. Severability............................... 57
SECTION 9.08. Right of Setoff............................ 58
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process.................... 58
SECTION 9.10. WAIVER OF JURY TRIAL....................... 58
SECTION 9.11. Headings................................... 59
SECTION 9.12. Confidentiality............................ 59
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.03 -- Specified Conrail Agreements
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Existing Credit Facilities
Schedule 6.03 -- Certain Transactions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Revolving Loan Note
Exhibit B-2 -- Form of Competitive Loan Note
Exhibit C -- Form of Opinion of Wachtell,
Lipton, Rosen & Katz
Exhibit D -- Form of Opinion of General Counsel
or an Assistant General Counsel
iii<PAGE>
CREDIT AGREEMENT, dated as of November 15, 1996,
among CSX CORPORATION, a Virginia corporation, as Borrower, the
LENDERS parties hereto, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION and NATIONSBANK, N.A., as Co-Syndication
Agents, THE BANK OF NOVA SCOTIA, as Documentation Agent, and
THE CHASE MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agree-
ment, the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrow-
ing, refers to whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by refer-
ence to the Alternate Base Rate.
"Acquisition" means the acquisition of all of the
Shares by Green by initially purchasing up to 40% of the Shares
(on a fully diluted basis (computed excluding any Shares that
would be outstanding or issuable upon the exercise of the
Conrail Stock Option)) by means of one or more tender offers
(including, but not limited to, the Initial Tender Offer),
exercise of the Conrail Stock Option or otherwise, followed by
the Merger in which all the remaining Shares will be converted
into the right to receive shares of common stock of the Bor-
rower and (to the extent that 40% of the Shares have not there-
tofore been purchased by the Borrower for cash) cash.
"Acquisition Transactions" means the collective ref-
erence to any material acquisition of Shares by the Borrower or
any Subsidiary, the Initial Tender Offer, the Second Offer (as
defined in the Merger Agreement), the Merger, the creation of
the Voting Trust (as defined in the Merger Agreement) and any
exercise of the Conrail Stock Option.
"Adjusted LIBO Rate" means, with respect to any Euro-
dollar Revolving Borrowing for any Interest Period, an interest
rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to (a) the LIBO Rate for such Interest Period mul-
tiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan
Bank, in its capacity as administrative agent for the Lenders
hereunder.
"Administrative Questionnaire" means an administra-
tive questionnaire in a form supplied by the Administrative
Agent.
"Affiliate" means, with respect to a specified
Person, another Person that directly, or indirectly through one
or more intermediaries, Controls or is Controlled by or is
under common Control with the Person specified.<PAGE>
"Agents" means the collective reference to the Admin-
istrative Agent, the Co-Syndication Agents and the Documenta-
tion Agent.
"Aggregate Outstanding Extensions of Credit" means,
at any time, an amount equal to the sum of (a) the aggregate
Revolving Credit Exposure of the Lenders at such time and (b)
the aggregate principal amount of outstanding Competitive Loans
of the Lenders at such time.
"Agreement" means this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per
annum equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effec-
tive Rate shall be effective from and including the effective
date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Percentage" means, with respect to any
Lender, the percentage of the total Commitments represented by
such Lender's Commitment. If the Commitments have terminated
or expired, the Applicable Percentages shall be determined
based upon the Commitments most recently in effect, giving
effect to any assignments.
"Applicable Rate" means, for any day, with respect to
any Eurodollar Revolving Loan, or with respect to the facility
fees payable hereunder, as the case may be, the applicable rate
per annum set forth below under the caption "LIBOR Margin" or
"Facility Fee", as the case may be, based upon the ratings by
Moody's and S&P, respectively, applicable on such date to the
Index Debt:
Index Debt Facility Fee LIBOR Margin
Ratings (basis points (basis points
(S&P/Moody's) per annum) per annum)
------------- ------------ ------------
Category 1 A/A2 or higher 6.0 14.0
Category 2 A-/A3 7.0 13.0
Category 3 BBB+/Baa1 8.5 16.5
Category 4 BBB/Baa2 10.0 20.0
Category 5 BBB-/Baa3 12.5 22.5
Category 6 BB+/Ba1 or lower 15.0 35.0
For purposes of the foregoing, (i) if neither Moody's nor S&P
shall have in effect a rating for the Index Debt (other than by
reason of the circumstances referred to in the last two sen-
tences of this definition), then both such rating agencies
shall be deemed to have established a rating in Category 6;
(ii) if only one of Moody's or S&P shall have in effect a rat-
ing for the Index Debt, then the Borrower and the Lenders 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 Rate will be deter-
mined by reference to the available rating; (iii) if the rat-
ings established or deemed to have
-2-<PAGE>
been established by Moody's and S&P for the Index Debt shall
fall within different Categories, the Applicable Rate shall be
based on the higher of the two ratings unless one of the two
ratings is two or more Categories lower than the other, in
which case the Applicable Rate shall be determined by reference
to the Category next below that of the higher of the two
ratings; and (iv) if the ratings established or deemed to have
been established by Moody's and S&P for the Index Debt shall be
changed (other than as a result of a change in the rating
system of Moody's or S&P), such change shall be effective as of
the date on which it is first announced by the applicable
rating agency. Each change in the Applicable Rate 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 Moody's or S&P shall change, the Borrower and the Lenders
shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of
ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Rate shall be determined
by reference to the rating or ratings most recently in effect
prior to such change or cessation. If both Moody's and S&P
shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders 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, and
in the absence of such amendment then both such rating agencies
shall be deemed to have established a rating in Category 6.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section
9.04), and accepted by the Administrative Agent, in the form of
Exhibit A or any other form approved by the Administrative
Agent and the Borrower.
"Attributable Debt" means, at any date with respect
to any Sale/Leaseback Transaction in respect of which the obli-
gations of the Borrower or any Subsidiary do not constitute
Capital Lease Obligations, the aggregate amount of rental pay-
ments due from the Borrower or such Subsidiary under the lease
entered into in connection with such Sale/Leaseback Transaction
during the remaining term of such lease, net of rental payments
which have been defeased or secured by deposits, discounted
from the respective due dates thereof to such date using a dis-
count rate equal to the discount rate that would then be used
to calculate the amount of Capital Lease Obligations with
respect to a comparable capital lease.
"Availability Period" means the period from and
including the Effective Date to but excluding the earlier of
the Maturity Date and the date of termination of the Commit-
ments.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrower" means CSX Corporation, a Virginia corpora-
tion.
"Borrowing" means (a) Revolving Loans of the same
Type made, converted or continued on the same date and, in the
case of Eurodollar Loans, as to which a single Interest Period
is in effect or (b) a Competitive Loan or group of Competitive
Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
-3-<PAGE>
"Borrowing Request" means a request by the Borrower
for a Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City
are authorized or required by law to remain closed; provided
that, when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are
not open for dealings in dollar deposits in the London inter-
bank market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
"Cash Collateral Account" has the meaning assigned to
such term in Section 2.10(c).
"Change in Control" means (a) the acquisition of own-
ership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date here-
of), of shares representing more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding
capital stock of the Borrower; (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors
of the Borrower by Persons who were neither (i) nominated by
the board of directors of the Borrower nor (ii) appointed by
directors so nominated; or (c) the acquisition of direct or
indirect Control of the Borrower by any Person or group.
"Change in Law" means (a) the adoption of any law,
rule or regulation after the date of this Agreement, (b) any
change in any law, rule or regulation or in the interpretation
or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender or any
Issuing Bank (or, for purposes of Section 2.14(b), by any lend-
ing office of such Lender or by such Lender's or Issuing Bank's
holding company, if any) with any request, guideline or direc-
tive (whether or not having the force of law) of any Governmen-
tal Authority made or issued after the date of this Agreement.
"Class" refers, when used in reference to any Loan or
Borrowing, to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to
acquire participations in Letters of Credit hereunder,
expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant
to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to
-4-<PAGE>
such Lender pursuant to Section 9.04. The initial amount of
each Lender's Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable.
"Competitive Bid" means an offer by a Lender to make
a Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any
Competitive Bid, the Margin or the Fixed Rate, as applicable,
offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Bor-
rower for Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Sec-
tion 2.04.
"Competitive Loan Note" has the meaning assigned to
such term in Section 2.09(e).
"Conrail" means Conrail Inc., a Pennsylvania corpora-
tion.
"Conrail Stock Option" means the option granted to
the Borrower pursuant to the Conrail Stock Option Agreement.
"Conrail Stock Option Agreement" means the Stock
Option Agreement, dated as of October 14, 1996, between the
Borrower and Conrail.
"Control" means the possession, directly or indi-
rectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. "Control-
ling" and "Controlled" have meanings correlative thereto.
"Co-Syndication Agents" means the collective refer-
ence to Bank of America National Trust and Savings Association
and NationsBank, N.A., in their respective capacities as co-
syndication agents hereunder.
"Debt" means, as to the Borrower or any Subsidiary at
any date of determination thereof, any obligation of the Bor-
rower or such Subsidiary, as the case may be, to the extent
that such obligation should be reflected in "Short Term Debt"
or "Long Term Debt" on a consolidated balance sheet or state-
ment of financial position of the Borrower at such date in
accordance with GAAP.
"Default" means any event or condition which consti-
tutes an Event of Default or which upon notice, lapse of time
or both would, unless cured or waived, become an Event of
Default.
"Disclosed Matters" means the actions, suits and pro-
ceedings and the environmental matters disclosed in Schedule
3.06.
-5-<PAGE>
"Documentation Agent" means The Bank of Nova Scotia,
in its capacity as documentation agent hereunder.
"dollars" or "$" refers to lawful money of the United
States of America.
"Effective Date" means the date on which the condi-
tions specified in Section 4.01 are satisfied (or waived in
accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regula-
tions, codes, ordinances, orders, decrees, judgments, injunc-
tions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural
resources or the management, release or threatened release of
any Hazardous Material.
"Environmental Liability" means any liability, con-
tingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or indem-
nities), of the Borrower or any Subsidiary directly or indi-
rectly resulting from or based upon (a) violation of any Envi-
ronmental Law, (b) the generation, use, handling, transporta-
tion, storage, treatment or disposal of any Hazardous Materi-
als, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the envi-
ronment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"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) that, together with the Borrower,
is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Sec-
tion 412(d) of the Code or Section 303(d) of ERISA of an appli-
cation for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the
receipt by the Borrower or any ERISA Affiliate from the PBGC or
a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to adminis-
ter any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the with-
drawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from
the Borrower or any ERISA Affiliate of any notice, concerning
the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
-6-<PAGE>
"Eurodollar", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate (or, in the case of a Com-
petitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such
term in Article VII.
"Excluded Taxes" means, with respect to the Adminis-
trative Agent, any Lender, any Issuing Bank or any other
recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) income and any branch profits
taxes imposed as a result of a present or former connection
between the Administrative Agent, any Lender, any Issuing Bank
or other recipient of such payment and the jurisdiction of the
governmental authority imposing such tax or any political sub-
division or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent,
such Lender or such Issuing Bank having executed, delivered or
performed its obligations or received a payment under, or
enforced, this Agreement) and (b) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.18(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement or is
attributable to such Foreign Lender's failure or inability to
comply with Section 2.16(e), except to the extent that such
Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower
with respect to such withholding tax pursuant to Section
2.16(a).
"Existing Credit Facilities" has the meaning assigned
to such term in Section 3.12.
"Federal Funds Effective Rate" means, for any day,
the weighted average (rounded upwards, if necessary, to the
next 1/100 of 1%) 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 that is
a Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial offic-
er, principal accounting officer, treasurer or controller of
the Borrower.
"Fixed Rate" means, with respect to any Competitive
Loan (other than a Eurodollar Competitive Loan), the fixed rate
of interest per annum specified by the Lender making such Com-
petitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing
interest at a Fixed Rate.
"Foreign Lender" means any Lender that is organized
under the laws of a jurisdiction other than the United States
of America, any State thereof or the District of Columbia.
"Foreign Subsidiary" means any Subsidiary that is
organized under the laws of a jurisdiction other than the Unit-
ed States of America, any State thereof or the District of
Columbia.
-7-<PAGE>
"GAAP" means generally accepted accounting principles
in the United States of America.
"Governmental Authority" means the government of the
United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judi-
cial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Green" means Green Acquisition Corp., a wholly-owned
subsidiary of the Borrower.
"Guarantee" of or by any Person (the "guarantor")
means any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the "pri-
mary obligor") in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or indi-
rect, (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obliga-
tion or to purchase (or to advance or supply funds for the pur-
chase of) any collateral security for the payment thereof,
(b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working cap-
ital, equity capital or any other financial statement condition
or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as
an account party in respect of any letter of credit or letter
of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorse-
ments for collection or deposit in the ordinary course of busi-
ness.
"Hazardous Materials" means all explosive or radioac-
tive substances or wastes and all hazardous or toxic sub-
stances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materi-
als, polychlorinated biphenyls, radon gas, infectious or medi-
cal wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protec-
tion agreement, foreign currency exchange agreement, commodity
price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplica-
tion, (a) all payment obligations of such Person for borrowed
money or with respect to deposits or advances of any kind,
(b) all payment obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations
of such Person upon which interest charges are customarily
paid, (d) all payment obligations of such Person under condi-
tional sale or other title retention agreements relating to
property acquired by such Person, (e) all payment obligations
of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable
incurred in the ordinary course of business), (f) all Indebted-
ness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such
Person, whether or
-8-<PAGE>
not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person, (i) all payment
obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of
guaranty and (j) all payment obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is
liable therefor as a result of such Person's ownership interest
in or other relationship with such entity, except to the extent
the terms of such Indebtedness provide that such Person is not
liable therefor.
"Indemnified Taxes" means Taxes arising directly from
any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement
other than Excluded Taxes and Other Taxes.
"Index Debt" means senior, unsecured, long-term
indebtedness for borrowed money of the Borrower that is not
guaranteed by any other Person or subject to any other credit
enhancement.
"Information" has the meaning assigned to such term
in Section 9.12.
"Initial Tender Offer" means the Tender Offer com-
menced by means of the Offer to Purchase, dated October 16,
1996, as amended from time to time, by which Green has offered
to purchase for cash 17,860,124 Shares of Conrail for $110 net
per share, which offer will expire at 12:00 midnight, New York
City time, on Wednesday, November 20, 1996, unless extended by
the Borrower and Green.
"Initial Tender Offer Condition" means the condition
that the Initial Tender Offer shall have been or shall concur-
rently be consummated in accordance with applicable law and the
Merger Agreement.
"Interest Election Request" means a request by the
Borrower to convert or continue a Revolving Borrowing in accor-
dance with Section 2.07.
"Interest Payment Date" means (a) with respect to any
ABR Loan, the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing
with an Interest Period of more than three months' duration,
each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first
day of such Interest Period and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to
the Borrowing of which such Loan is a part and, in the case of
a Fixed Rate Borrowing with an Interest Period of more than 90
days' duration (unless otherwise specified in the applicable
Competitive Bid Request), each day prior to the last day of
such Interest Period that occurs at intervals of 90 days' dura-
tion after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid
Request as Interest Payment Dates with respect to such Borrow-
ing.
-9-<PAGE>
"Interest Period" means (a) with respect to any Euro-
dollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months there-
after, as the Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than
7 days or more than 360 days) commencing on the date of such
Borrowing and ending on the date specified in the applicable
Competitive Bid Request; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Busi-
ness Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calen-
dar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period per-
taining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on
which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Issuing Bank" means each of Bank of America National
Trust and Savings Association, The Bank of Nova Scotia, The
Chase Manhattan Bank, NationsBank, N.A. and their respective
Affiliates, in their respective capacities as issuers of Let-
ters of Credit hereunder, and their respective successors in
such capacity as provided in Section 2.05(i).
"LC Disbursement" means a payment made by an Issuing
Bank pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit
at such time plus (b) the aggregate amount of all LC Disburse-
ments that have not yet been reimbursed by or on behalf of the
Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Expo-
sure at such time.
"Lenders" means the Persons listed on Schedule 2.01
and any other Person that shall have become a party hereto pur-
suant to an Assignment and Acceptance, other than any such Per-
son that ceases to be a party hereto pursuant to an Assignment
and Acceptance or pursuant to Section 2.18.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement.
"LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, the rate appearing on Page
3750 of the Telerate Service (or on any successor or substitute
page of such Service, or any successor to or substitute for
such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined
by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement
of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then
the "LIBO Rate" with respect to such Eurodollar
-10-<PAGE>
Borrowing for such Interest Period shall be the rate at which
dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office
of the Administrative Agent in immediately available funds in
the London interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, (a) with respect to any asset, (i) any
mortgage, deed of trust, lien, pledge, hypothecation, encum-
brance, charge or security interest in, on or of such asset, or
(ii) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and
(b) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities
(other than with respect to the capital stock of any Foreign
Subsidiary, any such option or right granted consistent with
the past practice of the Borrower and the Subsidiaries).
"Loans" means the loans made by the Lenders to the
Borrower pursuant to this Agreement.
"Majority Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing
at least 51% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time; provided that, for pur-
poses of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due
and payable pursuant to Article VII or the Commitments expire
or terminate, the outstanding Competitive Loans of the Lenders
shall be included in their respective Revolving Credit Expo-
sures in determining the Majority Lenders.
"Margin" means, with respect to any Competitive Loan
bearing interest at a rate based on the LIBO Rate, the marginal
rate of interest, if any, to be added to or subtracted from the
LIBO Rate to determine the rate of interest applicable to such
Loan, as specified by the Lender making such Loan in its relat-
ed Competitive Bid.
"Margin Stock" has the meaning assigned to such term
in Regulation U (including, so long as the same constitute
Margin Stock under Regulation U, the Shares).
"Material Adverse Effect" means an adverse effect on
the business, assets, operations or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a
whole, in an aggregate amount in excess of an amount equal to
3% of Total Shareholders' Equity.
"Material Indebtedness" means Indebtedness (other
than the Loans and Letters of Credit) of any one or more of the
Borrower and the Subsidiaries in an aggregate principal amount
exceeding $75,000,000.
"Maturity Date" means November 15, 2001.
"Merger" means the merger of Green and Conrail.
-11-<PAGE>
"Merger Agreement" means the Agreement and Plan of
Merger, dated as of October 14, 1996, by and among Conrail,
Green and the Borrower, as amended by the First Amendment
thereto, dated as of November 5, 1996.
"Moody's" means Moody's Investors Service, Inc. or
any successor to its corporate debt ratings business.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to any sale
or other disposition of Shares, the cash proceeds (including
cash equivalents and any cash payments received by way of
deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or other-
wise, but only as and when received) of such sale or other dis-
position received by the Borrower or any Subsidiary, net of all
attorneys' fees, accountants' fees, investment banking fees and
other customary fees actually incurred by the Borrower or any
Subsidiary and documented in connection therewith and net of
taxes paid or reasonably expected to be payable by the Borrower
or any Subsidiary as a result thereof.
"Notes" means the collective reference to any Com-
petitive Loan Notes and Revolving Loan Notes.
"Other Taxes" means any and all present or future
stamp or documentary taxes or any other excise or property tax-
es, charges or similar levies arising directly from any payment
made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning assigned to such term
in Section 9.04(e).
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity per-
forming similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section
5.04;
(b) carriers', warehousemen's, mechanics', material-
men's, repairmen's and other like Liens imposed by law,
arising in the ordinary course of business;
(c) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations (other than ERISA);
(d) deposits to secure the performance of bids,
trade contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a
like nature, in each case in the ordinary course of busi-
ness; and
-12-<PAGE>
(e) easements, zoning restrictions, rights-of-way
and similar encumbrances on real property imposed by law
or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially
detract from the value of the affected property or inter-
fere with the ordinary conduct of business of the Borrower
or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not
include any Lien securing Debt.
"Person" means any natural person, corporation, lim-
ited liability company, trust, joint venture, association, com-
pany, partnership, Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title
IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is
(or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Prime Rate" means the rate of interest per annum
publicly announced from time to time by The Chase Manhattan
Bank as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective
from and including the date such change is publicly announced
as being effective.
"Railroad Revenues" means, with respect to the Bor-
rower or any Subsidiary for any period, all revenues of the
Borrower or such Subsidiary, as the case may be, from third
parties which should, in accordance with GAAP, be included in
operating revenues of the Borrower's railroad subsidiaries as
reflected in the consolidated financial statements (or in the
"Management's Discussion and Analysis" section of the report on
Form 10-K or 10-Q related thereto) of the Borrower and the Sub-
sidiaries for such period.
"Railroad Subsidiary" means any Subsidiary that is a
Class I common carrier by rail under the rules of the Surface
Transportation Board or any other Subsidiary the Railroad Rev-
enues of which for the most recent period of four fiscal quar-
ters of the Borrower exceed an amount equal to 5% of the aggre-
gate Railroad Revenues of the Borrower and the Subsidiaries for
such period.
"Register" has the meaning assigned to such term in
Section 9.04(c).
"Regulation G" means Regulation G of the Board.
"Regulation U" means Regulation U of the Board.
"Related Parties" means, with respect to any speci-
fied Person, such Person's Affiliates and the respective direc-
tors, officers, employees, agents and advisors of such Person
and such Person's Affiliates.
"Restricted Margin Stock" means Margin Stock owned by
the Borrower or any Subsidiary which represents not more than
33-1/3% of the aggregate value (determined in
-13-<PAGE>
accordance with Regulation U), on a consolidated basis, of the
property and assets of the Borrower and the Subsidiaries (other
than any Margin Stock) that is subject to the provisions of
Article 6 (including Section 6.03).
"Revolving Credit Exposure" means, with respect to
any Lender at any time, the sum of the outstanding principal
amount of such Lender's Revolving Loans and its LC Exposure at
such time.
"Revolving Loan" means a Loan made pursuant to Sec-
tion 2.03.
"Revolving Loan Note" has the meaning assigned to
such term in Section 2.09(e).
"Sale/Leaseback Transaction" has the meaning assigned
to such term in Section 6.04.
"S&P" means Standard & Poor's Ratings Group or any
successor to its corporate debt ratings business.
"SEC" means the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the
functions of said Commission.
"Shares" means the issued and outstanding shares of
common stock and Series A ESOP Convertible Junior Preferred
Stock of Conrail.
"Significant Subsidiary" means any Subsidiary that
would be a "significant subsidiary" within the meaning of the
SEC's Regulation S-X and any other Subsidiaries that the Bor-
rower may from time to time designate as a "Significant Subsid-
iary" by written notice to such effect to the Administrative
Agent.
"Statutory Reserve Rate" means a fraction (expressed
as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of
the maximum reserve percentages (including any marginal, spe-
cial, emergency or supplemental reserves) expressed as a deci-
mal established by the Board to which the Administrative Agent
is subject for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to consti-
tute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemp-
tions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in any reserve per-
centage.
"subsidiary" means, with respect to any Person (the
"parent") at any date, any corporation, limited liability com-
pany, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the
parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such
date.
"Subsidiary" means any subsidiary of the Borrower.
-14-<PAGE>
"Successor Corporation" has the meaning assigned to
such term in Section 6.05.
"Taxes" means any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
"Total Capitalization" means, at any date of determi-
nation thereof, the sum of Total Debt at such date plus Total
Shareholders' Equity at such date.
"Total Debt" means, at any date of determination
thereof, all Debt of the Borrower and the Subsidiaries at such
date; provided that "Total Debt" shall not include any Debt
incurred to finance the purchase of Shares pursuant to the
Conrail Stock Option up to the aggregate purchase price there-
for as in effect on the date hereof.
"Total Shareholders' Equity" means, as to the Bor-
rower at any date of determination thereof, the sum of all
items which would be included under shareholders' equity on a
consolidated balance sheet or statement of financial position
of the Borrower at such date in accordance with GAAP.
"Transactions" means the execution, delivery and per-
formance by the Borrower of this Agreement and any Notes, the
borrowing of Loans, the use of the proceeds thereof and the
request for the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrow-
ing, refers to whether the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is determined by reference
to the Adjusted LIBO Rate, the Alternate Base Rate or, in the
case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"Unrestricted Margin Stock" means any Margin Stock
owned by the Borrower or any Subsidiary which is not Restricted
Margin Stock.
"Withdrawal Liability" means liability to a Multiem-
ployer Plan as a result of a complete or partial withdrawal
from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrow-
ings. For purposes of this Agreement, Loans may be classified
and referred to by Class (e.g., a "Revolving Loan") or by Type
(e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classi-
fied and referred to by Class (e.g., a "Revolving Borrowing")
or by Type (e.g., a "Eurodollar Borrowing") or by Class and
Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of
terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include", "includes" and "includ-
ing" shall be deemed to be followed by the phrase "but not lim-
ited to". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any
agreement,
-15-<PAGE>
instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to
any Person shall be construed to include such Person's
successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles and Sections of, and Exhibits and Sched-
ules to, this Agreement and (e) the words "asset" and "prop-
erty" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract
rights.
SECTION 1.04. Accounting Terms; GAAP. Except as
otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided that, if the Borrower
notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if
the Administrative Agent notifies the Borrower that the Major-
ity Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis
of GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolv-
ing Loans to the Borrower from time to time during the Avail-
ability Period in an aggregate principal amount that will not
result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment, (b) the Aggregate Outstanding Exten-
sions of Credit exceeding the total Commitments or (c) at any
time prior to the satisfaction of the Initial Tender Offer Con-
dition, the Aggregate Outstanding Extensions of Credit exceed-
ing $800,000,000. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each
Revolving Loan shall be made as part of a Borrowing consisting
of Revolving Loans made by the Lenders ratably in accordance
with their respective Commitments. Each Competitive Loan shall
be made in accordance with the procedures set forth in Section
2.04. The failure of any Lender to make any Loan required to be
made by it shall not relieve any other Lender of its obliga-
tions hereunder; provided that the Commitments and Competitive
Bids of the Lenders are several and no Lender shall be respon-
sible for any other Lender's failure to make Loans as required.
-16-<PAGE>
(b) Subject to Section 2.13, (i) each Revolving Bor-
rowing shall be comprised entirely of ABR Loans or Eurodollar
Loans as the Borrower may request in accordance herewith, and
(ii) each Competitive Borrowing shall be comprised entirely of
Eurodollar Loans or Fixed Rate Loans as the Borrower may
request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obliga-
tion of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for
any Eurodollar Revolving Borrowing, such Borrowing shall be in
an aggregate amount that is an integral multiple of $1,000,000
and not less than $10,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000; provided that an ABR Revolving Bor-
rowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is
required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Each Competitive Borrowing
shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. Borrowings of more
than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total
of 20 Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request, or to
elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Matu-
rity Date.
SECTION 2.03. Requests for Revolving Borrowings.
To request a Revolving Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the
case of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of the pro-
posed Borrowing or (b) in the case of an ABR Borrowing, not
later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that any
such notice of an ABR Revolving Borrowing to finance the reim-
bursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m., New York City
time, on the date of the proposed Borrowing. Each such tele-
phonic Borrowing Request shall be irrevocable and shall be con-
firmed promptly by hand delivery or telecopy to the Administra-
tive Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the fol-
lowing information in compliance with Section 2.02:
(i) the aggregate amount of the requested Bor-
rowing;
(ii) the date of such Borrowing, which shall be
a Business Day;
(iii) whether such Borrowing is to be an ABR Bor-
rowing or a Eurodollar Borrowing;
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(iv) in the case of a Eurodollar Borrowing, the
initial Interest Period to be applicable thereto,
which shall be a period contemplated by the defini-
tion of the term "Interest Period"; and
(v) the location and number of the Borrower's
account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is
specified, then the requested Revolving Borrowing shall be
an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing,
then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly follow-
ing receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's
Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Sub-
ject to the terms and conditions set forth herein, from time to
time during the Availability Period the Borrower may request
Competitive Bids and may (but shall not have any obligation to)
accept Competitive Bids and borrow Competitive Loans; provided
that the Aggregate Outstanding Extensions of Credit at any time
shall not exceed (i) the total Commitments at such time or (ii)
at any time prior to the satisfaction of the Initial Tender
Offer Condition, $800,000,000. To request Competitive Bids,
the Borrower shall notify the Administrative Agent of such
request by telephone, in the case of a Eurodollar Borrowing,
not later than 11:00 a.m., New York City time, four Business
Days before the date of the proposed Borrowing and, in the case
of a Fixed Rate Borrowing, not later than 10:00 a.m., New York
City time, one Business Day before the date of the proposed
Borrowing; provided that the Borrower may submit up to (but not
more than) three Competitive Bid Requests at the same time on
the same day, but a Competitive Bid Request shall not be made
within three Business Days after the date of any previous Com-
petitive Bid Request, unless any and all such previous Competi-
tive Bid Requests shall have been withdrawn or all Competitive
Bids received in response thereto rejected. Each such tele-
phonic Competitive Bid Request shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Bor-
rowing;
(ii) the date of such Borrowing, which shall be
a Business Day;
(iii) whether such Borrowing is to be a Eurodol-
lar Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to
such Borrowing, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's
account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.06.
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Promptly following receipt of a Competitive Bid Request in
accordance with this Section, the Administrative Agent
shall notify the Lenders of the details thereof by tele-
copy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obliga-
tion to) make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid by
a Lender must be in a form approved by the Administrative Agent
and must be received by the Administrative Agent by telecopy,
in the case of a Eurodollar Competitive Borrowing, not later
than 9:30 a.m., New York City time, three Business Days before
the proposed date of such Competitive Borrowing and, in the
case of a Fixed Rate Borrowing, not later than 9:30 a.m., New
York City time, on the proposed date of such Competitive Bor-
rowing. Competitive Bids that do not conform substantially to
the form approved by the Administrative Agent may be rejected
by the Administrative Agent, and the Administrative Agent shall
notify the applicable Lender as promptly as practicable. Each
Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of
the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage
rate per annum in the form of a decimal to no more than four
decimal places) and (iii) the Interest Period applicable to
each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify
the Borrower by telecopy of the Competitive Bid Rate and the
principal amount specified in each Competitive Bid and the
identity of the Lender that shall have made such Competitive
Bid.
(d) Subject only to the provisions of this para-
graph, the Borrower may accept or reject any Competitive Bid.
The Borrower shall notify the Administrative Agent by tele-
phone, confirmed by telecopy in a form approved by the Adminis-
trative Agent, whether and to what extent it has decided to
accept or reject each Competitive Bid, in the case of a Euro-
dollar Competitive Borrowing, not later than 10:30 a.m., New
York City time, three Business Days before the date of the pro-
posed Competitive Borrowing and, in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on
the proposed date of the Competitive Borrowing; provided that
(i) the failure of the Borrower to give such notice shall be
deemed to be a rejection of each Competitive Bid, (ii) the Bor-
rower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if the Borrower rejects a Competitive Bid
made at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Borrower shall
not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request,
(iv) to the extent necessary to comply with clause (iii) above,
the Borrower may accept Competitive Bids at the same Competi-
tive Bid Rate in part, which acceptance, in the case of multi-
ple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Com-
petitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000; provided
further that, if a Competitive Loan must be in an amount less
than $5,000,000 because of the provisions of clause (iv) above,
such Competitive Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive
Bids at a particular Competitive Bid Rate
-19-<PAGE>
pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this
paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify
each bidding Lender by telecopy whether or not its Competitive
Bid has been accepted (and, if so, the amount and Competitive
Bid Rate so accepted), and each successful bidder will there-
upon become bound, subject to the terms and conditions hereof,
to make the Competitive Loan in respect of which its Competi-
tive Bid has been accepted.
(f) If the Administrative Agent shall elect to sub-
mit a Competitive Bid in its capacity as a Lender, it shall
submit such Competitive Bid directly to the Borrower at least
one quarter of an hour earlier than the time by which the other
Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Letters of Credit. (a) General. Sub-
ject to the terms and conditions set forth herein, the Borrower
(and, if a Letter of Credit is issued for the benefit of any
Subsidiary, such Subsidiary) may request the issuance of Let-
ters of Credit for the account of the Borrower (and, if such
Letter of Credit is issued for the benefit of any Subsidiary,
for the account of the Borrower and such Subsidiary, jointly
and severally), in a form reasonably acceptable to the Adminis-
trative Agent and the relevant Issuing Bank, at any time and
from time to time during the Availability Period. In the event
of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of
credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, the Issuing Bank with
respect to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Exten-
sion; Certain Conditions. To request the issuance of a Letter
of Credit (or the amendment, renewal or extension of an out-
standing Letter of Credit), the Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrange-
ments for doing so have been approved by the relevant Issuing
Bank) to the relevant Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issu-
ance of a Letter of Credit, or identifying the Letter of Credit
to be amended, renewed or extended, the date of issuance,
amendment, renewal or extension, the date on which such Letter
of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other informa-
tion as shall be necessary to prepare, amend, renew or extend
such Letter of Credit. If requested by the relevant Issuing
Bank, the Borrower also shall submit a letter of credit appli-
cation on the relevant Issuing Bank's standard form in connec-
tion with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment,
renewal or extension, (i) the LC Exposure shall not exceed
$50,000,000 and (ii) the Aggregate Outstanding Extensions of
Credit shall not exceed (x) the total Commitments or (y) at any
time prior to the satisfaction of the Initial Tender Offer Con-
dition, $800,000,000.
-20-<PAGE>
(c) Expiration Date. Each Letter of Credit shall
expire at or prior to the close of business on the earlier of
(i) the date that is five Business Days prior to the Maturity
Date and (ii) the date one year after the date of the issuance
of such Letter of Credit, provided that, subject to clause (i)
above, any Letter of Credit may, at the request of the Borrower
as set forth in the applicable application for such Letter of
Credit, be automatically renewed on each anniversary of the
issuance thereof for an additional period of one year unless
the Issuing Bank which issued such Letter of Credit shall have
given prior written notice to the Borrower and the beneficiary
of such Letter of Credit that such Letter of Credit will not be
renewed.
(d) Participations. By the issuance of a Letter of
Credit (or an amendment to a Letter of Credit increasing the
amount thereof) by an Issuing Bank and without any further
action on the part of such Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender
hereby acquires from such Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage
of the aggregate amount available to be drawn under such Letter
of Credit. In consideration and in furtherance of the forego-
ing, each Lender hereby absolutely and unconditionally agrees
to pay to the Administrative Agent, for the account of such
Issuing Bank, such Lender's Applicable Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by
the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be
refunded to the Borrower for any reason. Each Lender acknowl-
edges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and con-
tinuance of a Default or reduction or termination of the Com-
mitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make
any LC Disbursement in respect of a Letter of Credit issued by
it, the Borrower shall reimburse such LC Disbursement by paying
to the Administrative Agent an amount equal to such LC Dis-
bursement not later than 12:00 noon, New York City time, on the
date that such LC Disbursement is made, if the Borrower shall
have received notice of such LC Disbursement prior to 10:00
a.m., New York City time, on such date, or, if such notice has
not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on
the Business Day immediately following the day that the Bor-
rower receives such notice; provided that the Borrower may,
subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 that such payment be
financed with an ABR Revolving Borrowing in an equivalent
amount and, to the extent so financed, the Borrower's obliga-
tion to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing. If the Borrower fails to
make such payment when due, the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the pay-
ment then due from the Borrower in respect thereof and such
Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Lender shall pay to the Adminis-
trative Agent its Applicable Percentage of the payment then due
from the Borrower, in the same manner as provided in Section
2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly
pay to the relevant Issuing Bank the amounts so received by it
from the Lenders. Promptly following receipt by the Adminis-
trative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such
-21-<PAGE>
payment to the relevant Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reim-
burse the relevant Issuing Bank, then to such Lenders and the
relevant Issuing Bank as their interests may appear. Any pay-
ment made by a Lender pursuant to this paragraph to reimburse
an Issuing Bank for any LC Disbursement (other than the funding
of ABR Revolving Loans as contemplated above) shall not consti-
tute a Loan and shall not relieve the Borrower of its obliga-
tion to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation
to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and
irrespective of:
(i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or
provision therein;
(ii) any amendment or waiver of or any consent to
departure from all or any of the provisions of any Letter
of Credit or this Agreement;
(iii) the existence of any claim, setoff, defense or
other right that the Borrower, any other party guarantee-
ing, or otherwise obligated with, the Borrower, any Sub-
sidiary or other Affiliate thereof or any other Person may
at any time have against the beneficiary under any Letter
of Credit, any Issuing Bank, the Administrative Agent or
any Lender or any other Person, whether in connection with
this Agreement or any other related or unrelated agreement
or transaction;
(iv) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being
untrue or inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of
Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of
Credit; and
(vi) any other act or omission to act or delay of any
kind of any Issuing Bank, the Lenders, the Administrative
Agent or any other Person or any other event or circum-
stance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Sec-
tion, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing
Bank, nor any of their Related Parties, shall have any liabil-
ity or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder, including any of the
circumstances specified in clauses (i) through (vi) above, as
well as any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other commun-
ication under or relating to any Letter of Credit (including
any document required to make a drawing thereunder), any error
in interpretation of technical terms or any consequence arising
from causes beyond the control of such Issuing Bank; provided
that the foregoing shall not
-22-<PAGE>
be construed to excuse any Issuing Bank from liability to the
Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by such Issuing
Bank's failure to exercise the agreed standard of care (as set
forth below) in determining whether drafts and other documents
presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that each Issuing
Bank shall have exercised the agreed standard of care in the
absence of gross negligence or wilful misconduct on the part of
such Issuing Bank, except to the extent that applicable law
requires a different standard of care. Without limiting the
generality of the foregoing, it is understood that an Issuing
Bank may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit,
without responsibility for further investigation, regardless of
any notice or information to the contrary, and may make payment
upon presentation of documents that appear on their face to be
in substantial compliance with the terms of such Letter of
Credit; provided that such Issuing Bank shall have the right,
in its sole discretion, to decline to accept such documents and
to make such payment if such documents are not in strict
compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. Each Issuing Bank
shall, promptly following its receipt thereof, examine all doc-
uments purporting to represent a demand for payment under a
Letter of Credit. Each Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed
by telecopy) of such demand for payment and whether such Issu-
ing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If an Issuing Bank shall make
any LC Disbursement, then, unless the Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, payable
on demand, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Bor-
rower reimburses such LC Disbursement, at the rate per annum
then applicable to ABR Revolving Loans; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pur-
suant to paragraph (e) of this Section, then Section 2.12(d)
shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the relevant Issuing Bank, except that
interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse an Issu-
ing Bank shall be for the account of such Lender to the extent
of such payment.
(i) Replacement of the Issuing Banks. Each Issuing
Bank may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank
and the successor Issuing Bank, provided that the successor
Issuing Bank must be a Lender or an Affiliate of a Lender. The
Administrative Agent shall notify the Lenders of any such
replacement of an Issuing Bank. At the time any such replace-
ment shall become effective, the Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pur-
suant to Section 2.11(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have
all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit to be issued by it
thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor Issuing Bank,
any other Issuing Bank,
-23-<PAGE>
or any previous Issuing Bank, or to such successor Issuing
Bank, all other Issuing Banks and all previous Issuing Banks,
as the context shall require. After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional
Letters of Credit.
(j) Cash Collateralization. If any Event of Default
shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the
Majority Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing at least 51%
of the total LC Exposure) demanding the deposit of cash col-
lateral pursuant to this paragraph, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an
amount in cash equal to the LC Exposure as of such date plus
any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effec-
tive immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Bor-
rower described in clause (f) or (g) of Article VII. Such
deposit shall be held in New York by the Administrative Agent
as collateral for the payment and performance of the obliga-
tions of the Borrower under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Investment
of such deposits shall, to the extent reasonably practicable,
be made at the direction of the Administrative Agent and at the
Borrower's risk and expense. Unless invested in accordance
with the preceding sentence, such deposits shall not bear
interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the rele-
vant Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the matu-
rity of the Loans has been accelerated (but subject to the con-
sent of Lenders with LC Exposure representing at least 51% of
the total LC Exposure), be applied to satisfy other obligations
of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount
(to the extent not applied as aforesaid) shall be returned to
the Borrower within three Business Days after all Events of
Default have been cured or waived.
SECTION 2.06. Funding of Borrowings. (a) Each
Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, New York City time, to the account of the
Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent
will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account
of the Borrower maintained with the Administrative Agent in New
York City and designated by the Borrower in the applicable Bor-
rowing Request or Competitive Bid Request; provided that ABR
Revolving Loans made to finance the reimbursement of an LC Dis-
bursement as provided in Section 2.05(e) shall be remitted by
the Administrative Agent to the relevant Issuing Bank.
-24-<PAGE>
(b) Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a)
of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the appli-
cable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective
Rate or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing and the Adminis-
trative Agent shall promptly return to the Borrower any amount
(including interest) paid by the Borrower to the Administrative
Agent pursuant to the immediately preceding sentence, together
with any interest thereon paid by such Lender for any day not
covered by the Borrower's payment.
SECTION 2.07. Interest Elections. (a) Each Revolv-
ing Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar
Revolving Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to
continue such Borrowing and, in the case of a Eurodollar
Revolving Borrowing, may elect Interest Periods therefor, all
as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Bor-
rowing, in which case each such portion shall be allocated rat-
ably among the Lenders holding the Loans comprising such Bor-
rowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply
to Competitive Borrowings, which may not be converted or con-
tinued.
(b) To make an election pursuant to this Section,
the Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request
would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such elec-
tion. Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent
and signed by the Borrower.
(c) Each telephonic and written Interest Election
Request shall specify the following information in compliance
with Section 2.02:
(i) the Borrowing to which such Interest Elec-
tion Request applies and, if different options are
being elected with respect to different portions
thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing);
-25-<PAGE>
(ii) the effective date of the election made
pursuant to such Interest Election Request, which
shall be a Business Day;
(iii) whether the resulting Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which
shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodol-
lar Borrowing but does not specify an Interest Period,
then the Borrower shall be deemed to have selected an
Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Elec-
tion Request, the Administrative Agent shall advise each Lender
of the details thereof and of such Lender's portion of each
resulting Borrowing.
(e) If the Borrower fails to deliver a timely Inter-
est Election Request with respect to a Eurodollar Revolving
Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall
be converted to an ABR Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the
Majority Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurodollar Bor-
rowing and (ii) unless repaid, each Eurodollar Revolving Bor-
rowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08. Expiration, Termination and Reduction
of Commitments. (a) Unless previously terminated, the Commit-
ments shall expire on the Maturity Date.
(b) In the event that any governmental approval
required for the Acquisition shall be finally denied (after
exhaustion of all available appeals), or in the event the Bor-
rower shall elect to abandon the Acquisition, the Commitments
shall be reduced to an amount (to the extent that the Commit-
ments then exceed such amount) equal to the sum at such time of
the Aggregate Outstanding Extensions of Credit plus the aggre-
gate face amount of outstanding commercial paper of the Bor-
rower supported by the Commitments (after giving effect on a
ratable basis to any other facilities of the Borrower then pro-
viding support for such commercial paper) plus $1,500,000,000.
(c) Upon any sale or other disposition of Shares
(other than Shares constituting Unrestricted Margin Stock) by
the Borrower or any Subsidiary (other than to the Borrower or
any Subsidiary), the Commitments shall be automatically reduced
in an amount equal to 100% of the Net Cash Proceeds of any such
sale or other disposition of Shares (other than Shares consti-
tuting Unrestricted Margin Stock). Each such reduction shall
become effective on the fifth Business Day following receipt by
the Borrower or any Subsidiary, as the case may be, of any such
Net Cash Proceeds.
-26-<PAGE>
(d) The Borrower may at any time terminate, or from
time to time reduce, the Commitments; provided that (i) each
reduction of the Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than $10,000,000
and (ii) the Borrower shall not terminate or reduce the Commit-
ments if, after giving effect to any concurrent prepayment of
the Loans in accordance with Section 2.10, the Aggregate Out-
standing Extensions of Credit would exceed the total Commit-
ments.
(e) The Borrower shall notify the Administrative
Agent of any election to terminate or reduce the Commitments
under paragraph (d) of this Section at least three Business
Days prior to the effective date of such termination or reduc-
tion, specifying such election and the effective date thereof.
Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall
be irrevocable; provided that a notice of termination of the
Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satis-
fied. Any termination or reduction of the Commitments shall be
permanent. Each reduction of the Commitments shall be made rat-
ably among the Lenders in accordance with their respective Com-
mitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay (i) to
the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan on the
Maturity Date and (ii) to the Administrative Agent for the
account of each applicable Lender the then unpaid principal
amount of each Competitive Loan on the last day of the Interest
Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts
in which it shall record (i) the amount of each Loan made here-
under, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or inter-
est due and payable or to become due and payable from the Bor-
rower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account
of the Lenders and each Lender's share thereof. In case of any
discrepancy between the entries made by the Administrative
Agent pursuant to this paragraph and the entries made by any
Lender pursuant to paragraph (b) of this Section, such Lender's
entries shall be considered correct, in the absence of manifest
error.
(d) In case of any dispute, action or proceeding
relating to any Loan, the entries made in the accounts main-
tained pursuant to paragraph (b) or (c) of this Section shall
be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms
of this Agreement.
-27-<PAGE>
(e) Any Lender may request of the Borrower that (i)
Revolving Loans made by it be evidenced by a promissory note,
substantially in the form of Exhibit B-1 (a "Revolving Loan
Note") and (ii) Competitive Loans made by it be evidenced by a
promissory note, substantially in the form of Exhibit B-2 (a
"Competitive Loan Note"). In such event, the Borrower shall
prepare, execute and deliver to such Lender promissory notes in
such forms payable to the order of such Lender (or, if request-
ed by such Lender, to such Lender and its registered assigns).
Thereafter, the Loans evidenced by such promissory notes and
interest thereon shall at all times (including after assignment
pursuant to Section 9.04) be represented by one or more promis-
sory notes in such forms payable to the order of the payee
named therein (or, if any such promissory note is a registered
note, to such payee and its registered assigns).
SECTION 2.10. Optional and Mandatory Prepayment of
Loans. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (b) of
this Section; provided that the Borrower shall not have the
right to prepay any Competitive Loan without the prior written
consent of the Lender thereof.
(b) The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment to
be made pursuant to paragraph (a) of this Section (i) in the
case of prepayment of a Eurodollar Revolving Borrowing, not
later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment or (ii) in the case of prepayment
of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment.
Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08.
Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of
any Revolving Borrowing shall be in an amount that would be
permitted in the case of an advance of a Revolving Borrowing of
the same Type as provided in Section 2.02. Each prepayment of
a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accom-
panied by payment of accrued interest to the extent required by
Section 2.12.
(c) If, following any reduction of the total Commit-
ments in connection with any sale or other disposition of
Shares by the Borrower or any Subsidiary or otherwise, the
Aggregate Outstanding Extensions of Credit exceed the total
Commitments, the Borrower shall, without notice or demand,
immediately repay Revolving Loans in an aggregate principal
amount equal to the lesser of (i) the amount of such excess and
(ii) the aggregate principal amount of Revolving Loans then
outstanding, together with interest accrued to the date of such
payment or prepayment on the principal so prepaid and any
amounts payable under Section 2.15 in connection therewith. To
the extent that after giving effect to any prepayment of
Revolving Loans required by the preceding sentence, the Aggre-
gate Outstanding Extensions of Credit still exceed the total
Commitments, the Borrower shall, without notice or demand,
immediately deposit in a Cash Collateral Account upon terms
reasonably satisfactory to the Administrative Agent an amount
equal to the amount of such remaining excess. The Administra-
tive Agent shall apply any cash
-28-<PAGE>
deposited in the Cash Collateral Account (to the extent
thereof) to repay the principal of each Competitive Loan on the
date such principal becomes due and payable hereunder and/or to
reimburse, pursuant to Section 2.05(e), any LC Disbursement
made thereafter, provided that the Administrative Agent shall
release to the Borrower from time to time such portion of the
amount on deposit in the Cash Collateral Account which is equal
to the amount by which the total Commitments at such time plus
the amount on deposit in the Cash Collateral Account exceeds
the Aggregate Outstanding Extensions of Credit at such time.
"Cash Collateral Account" means an account, in the name of the
Administrative Agent for the benefit of the Lenders,
established by the Borrower with the Administrative Agent and
over which the Administrative Agent shall have exclusive
dominion and control, including the exclusive right of
withdrawal for application in accordance with this Section.
SECTION 2.11. Fees. (a) The Borrower agrees to pay
to the Administrative Agent for the account of each Lender a
facility fee, which shall accrue at the Applicable Rate on the
daily amount of the Commitment of such Lender (whether used or
unused) during the period from and including the Effective Date
to but excluding the date on which such Commitment expires or
is terminated; provided that, if such Lender continues to have
any Revolving Credit Exposure after its Commitment terminates,
then such facility fee shall continue to accrue on the daily
amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any
Revolving Credit Exposure. Accrued facility fees shall be pay-
able in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the
date hereof; provided that any facility fees accruing after the
date on which the Commitments terminate shall be payable on
demand. All facility fees shall be computed on the basis of a
year of 365 (or 366 in the case of a leap year) days and shall
be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Adminis-
trative Agent for the account of each Lender a participation
fee with respect to its participations in Letters of Credit,
which shall accrue at a rate per annum equal to the Applicable
Rate applicable to interest on Eurodollar Revolving Loans on
the average daily amount of such Lender's LC Exposure (exclud-
ing any portion thereof attributable to unreimbursed LC Dis-
bursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lend-
er's Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to each Issuing Bank a
fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Borrower and such Issuing
Bank on the average daily amount of the LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disburse-
ments) relating to the Letters of Credit issued by such Issuing
Bank during the period from and including the Effective Date to
but excluding the later of the date of termination of the Com-
mitments and the date on which there ceases to be any such LC
Exposure, as well as such Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder. Partic-
ipation fees and fronting fees accrued through and including
the last day of March, June, September and December of each
year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on
the date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments
-29-<PAGE>
terminate shall be payable on demand. Any other fees payable to
any Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and front-
ing fees shall be computed on the basis of a year of 365 (or
366 in the case of a leap year) days and shall be payable for
the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrower agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the
Administrative Agent.
(d) All fees payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administra-
tive Agent (or to an Issuing Bank, in the case of fees payable
to it) for distribution, in the case of facility fees and par-
ticipation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising
each ABR Borrowing shall bear interest at a rate per annum
equal to the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing
shall bear interest at a rate per annum equal to (i) in the
case of a Eurodollar Revolving Loan, the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing plus the
Applicable Rate or (ii) in the case of a Eurodollar Competitive
Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin applicable
to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a
rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal
of or interest on any Loan or any fee or other amount payable
by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment,
from and including the date such amount shall become due, but
excluding the date such amount shall be paid in accordance with
Section 2.17, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided above or (ii) in the case
of any other amount, 2% plus the rate applicable to ABR Loans
as provided above.
(e) Accrued interest on each Loan shall be payable
in arrears on each Interest Payment Date for such Loan; pro-
vided that (i) interest accrued pursuant to paragraph (d) of
this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepay-
ment of an ABR Revolving Loan prior to the end of the Avail-
ability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repay-
ment or prepayment, (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall
be payable on the effective date of such conversion and (iv)
all accrued interest shall be payable upon termination of the
Commitments.
-30-<PAGE>
(f) All interest hereunder shall be computed on the
basis of a year of 360 days, except that interest computed by
reference to the Alternate Base Rate at times when the Alter-
nate Base Rate is based on the Prime Rate shall be computed on
the basis of a year of 365 days (or 366 days in a leap year),
and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such
determination shall be presumptively correct absent manifest
error.
SECTION 2.13. Alternate Rate of Interest. If prior
to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Administrative Agent determines (which
determination shall be presumptively correct, absent mani-
fest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the
Majority Lenders (or, in the case of a Eurodollar Competi-
tive Loan, the Lender that is required to make such Loan)
that the Adjusted LIBO Rate or the LIBO Rate, as appli-
cable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the
Borrower and the Lenders by telephone or telecopy as promptly
as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a
Eurodollar Borrowing shall be ineffective, (ii) if any Borrow-
ing Request requests a Eurodollar Revolving Borrowing, such
Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Borrower for a Eurodollar Competitive Borrowing
shall be ineffective; provided that (A) if the circumstances
giving rise to such notice do not affect all the Lenders, then
requests by the Borrower for Eurodollar Competitive Borrowings
may be made to Lenders that are not affected thereby and (B) if
the circumstances giving rise to such notice affect only one
Type of Borrowings, then the other Type of Borrowings shall be
permitted.
SECTION 2.14. Increased Costs. (a) If any Change
in Law shall:
(i) impose, modify or deem applicable any
reserve, special deposit or similar requirement
against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted
LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or
the London interbank market any other condition
affecting this Agreement or Eurodollar Loans or Fixed
Rate Loans made by such Lender or any Letter of Cred-
it or participation therein;
-31-<PAGE>
and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining
any Eurodollar Loan or Fixed Rate Loan or to increase the
cost to such Lender or any Issuing Bank of participating
in, issuing or maintaining any Letter of Credit or to
reduce the amount of any sum received or receivable by
such Lender or such Issuing Bank hereunder in respect of
such Loan or Letter of Credit by an amount deemed by such
Lender to be material, then the Borrower will pay to such
Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lend-
er or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines
that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such
Lender's or such Issuing Bank's capital or on the capital of
such Lender's or such Issuing Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or
the Letters of Credit issued by such Issuing Bank, to a level
below that which such Lender or such Issuing Bank or such Lend-
er's or such Issuing Bank's holding company could have achieved
but for such Change in Law (taking into consideration such
Lender's or such Issuing Bank's policies and the policies of
such Lender's or such Issuing Bank's holding company with
respect to capital adequacy) by an amount deemed by such Lender
or such Issuing Bank to be material, then from time to time the
Borrower will pay to such Lender or such Issuing Bank, as the
case may be, such additional amount or amounts as will compen-
sate such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank
setting forth the amount or amounts (including the basis there-
for and the calculation thereof) necessary to compensate such
Lender or such Issuing Bank or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be presumptively
correct absent manifest error. The Borrower shall pay such
Lender or such Issuing Bank, as the case may be, the amount
shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or
any Issuing Bank to demand compensation pursuant to this Sec-
tion shall not constitute a waiver of such Lender's or such
Issuing Bank's right to demand such compensation; provided that
the Borrower shall not be required to compensate a Lender or an
Issuing Bank pursuant to this Section for any increased costs
or reductions incurred more than three months prior to the date
that such Lender or such Issuing Bank, as the case may be,
notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or such
Issuing Bank's intention to claim compensation therefor; pro-
vided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the three-
month period referred to above shall be extended to include the
period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this
Section, a Lender shall not be entitled to compensation pursu-
ant to this Section in respect of any Competitive Loan if the
Change in Law that would otherwise entitle it to such compensa-
tion shall have been publicly announced prior to submission of
the Competitive Bid pursuant to which such Loan was made.
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SECTION 2.15. Break Funding Payments. In the event
of (a) the payment of any principal of any Eurodollar Loan or
Fixed Rate Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than
on the last day of the Interest Period applicable thereto, (c)
the failure to borrow, convert, continue or prepay any Revolv-
ing Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice is permitted to be
revocable under Section 2.10(b) and is revoked in accordance
herewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the
assignment of any Eurodollar Loan or Fixed Rate Loan other than
on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.18,
then, in any such event, the Borrower shall compensate each
Lender for the loss and the actual cost and expense attribut-
able to such event. In the case of a Eurodollar Loan, the loss
to any Lender attributable to any such event shall be deemed to
include an amount reasonably determined by such Lender to be
equal to the excess, if any, of (i) the amount of interest that
such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such pay-
ment, conversion, failure or assignment to the last day of the
then current Interest Period for such Loan (or, in the case of
a failure to borrow, convert or continue, the duration of the
Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on
such deposit were equal to the Adjusted LIBO Rate (in the case
of a Eurodollar Revolving Loan) or the LIBO Rate (in the case
of a Eurodollar Competitive Loan) for such Interest Period,
over (ii) the amount of interest that such Lender would earn on
such principal amount for such period if such Lender were to
invest such principal amount for such period at the interest
rate that would be bid by such Lender (or an Affiliate of such
Lender) for dollar deposits from other banks in the eurodollar
market at the commencement of such period. A certificate of
any Lender setting forth any amount or amounts that such Lender
is entitled to receive (including the basis therefor and the
calculation thereof) pursuant to this Section shall be deliv-
ered to the Borrower and shall be presumptively correct absent
manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by
or on account of any obligation of the Borrower hereunder shall
be made free and clear of and without deduction for any Indem-
nified Taxes or Other Taxes; provided that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Tax-
es from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deduc-
tions (including deductions applicable to additional sums pay-
able under this Section) the Administrative Agent, each Lender
or each Issuing Bank (as the case may be) receives an amount
equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) The Borrower shall indemnify the Administrative
Agent, each Lender and each Issuing Bank, within 30 days after
written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Tax-
es imposed or asserted on or attributable to amounts payable
under this Section) paid by the Administrative
-33-<PAGE>
Agent, such Lender or such Issuing Bank, as the case may be,
and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto to the extent such penalties,
interest and expenses shall not result from any action or inac-
tion on the part of the Administrative Agent, such Lender or
such Issuing Bank, as the case may be, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability
(including the basis therefor and the calculation thereof)
delivered to the Borrower by a Lender or an Issuing Bank, or by
the Administrative Agent on its own behalf or on behalf of a
Lender or an Issuing Bank, shall be presumptively correct
absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Govern-
mental Authority, the Borrower shall deliver to the Administra-
tive Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
(e) Unless after the date any Foreign Lender becomes
a Lender hereunder there is a Change in Law which would prevent
such Foreign Lender from duly completing and delivering such
documentation and such Foreign Lender so advises the Adminis-
trative Agent and the Borrower, such Foreign Lender shall
deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will
permit payments made under this Agreement to be made without
withholding.
(f) If the Borrower determines in good faith that a
reasonable basis exists for contesting a Tax, the relevant
Lender or the Administrative Agent, as applicable, shall coop-
erate with the Borrower in challenging such Tax at the Borrow-
er's expense if requested by the Borrower. If any Lender or
the Administrative Agent, as applicable, obtains a credit
against or receives a refund or reduction (whether by way of
direct payment or by offset) of any Tax for which payment has
been made pursuant to this Section, which credit, refund or
reduction in the good faith judgment of such Lender or the
Administrative Agent, as the case may be, (and without any
obligation to disclose its tax records) is allocable to such
payment made under this Section, the amount of such credit,
refund or reduction (together with any interest received there-
on) promptly shall be paid to the Borrower to the extent pay-
ment has been made in full by the Borrower pursuant to this
Section.
SECTION 2.17. Payments Generally; Pro Rata Treat-
ment; Sharing of Set-offs. (a) The Borrower shall make each
payment required to be made by it hereunder (whether of princi-
pal, interest, fees or reimbursement of LC Disbursements, or
under Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00
noon, New York City time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to an Issu-
ing Bank as expressly provided herein and except that payments
pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made
directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by
-34-<PAGE>
it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Busi-
ness Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such exten-
sion at the same applicable rate. All payments hereunder shall
be made in dollars.
(b) If at any time insufficient funds are received
by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest
and fees then due hereunder, such funds shall be applied (i)
first, to pay interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii)
second, to pay principal and unreimbursed LC Disbursements then
due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect
of any principal of or interest on any of its Revolving Loans
or participations in LC Disbursements resulting in such Lender
receiving payment of a greater proportion of the aggregate
amount of its Revolving Loans and participations in LC Dis-
bursements and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) par-
ticipations in the Revolving Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Revolving Loans and
participations in LC Disbursements; provided that (i) if any
such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provi-
sions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by
a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Dis-
bursements to any assignee or participant, other than to the
Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquir-
ing a participation pursuant to the foregoing arrangements may,
subject to Section 9.08, exercise against the Borrower rights
of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Bor-
rower in the amount of such participation.
(d) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account
of the Lenders or an Issuing Bank hereunder that the Borrower
will not make such payment, the Administrative Agent may assume
that the Borrower has made such payment on such date in accor-
dance herewith and may, in reliance upon such assumption, dis-
tribute to the Lenders or such Issuing Bank, as the case may
be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or such Issu-
ing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distrib-
uted to such Lender or such Issuing Bank with interest thereon,
for each day from and including the date
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such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(e) If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.05(d) or (e),
2.06(b) or 2.17(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender or a Participant in such Lender's
Loans requests compensation under Section 2.14, or if the Bor-
rower is required to pay any additional amount to any Lender or
a Participant in such Lender's Loans or any Governmental
Authority for the account of any Lender or Participant pursuant
to Section 2.16, then such Lender or Participant shall use rea-
sonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches
or Affiliates, if, in the reasonable judgment of such Lender or
Participant, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.14 or 2.16, as
the case may be, in the future and (ii) would not subject such
Lender or Participant to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender or Par-
ticipant. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender or Participant in
connection with any such designation or assignment. Without
limiting the generality of the foregoing, each Lender and Par-
ticipant shall use all reasonable efforts to mitigate the
effect upon the Borrower of any increased capital requirement
and shall assess any cost related to such increased capital on
a nondiscriminatory basis among the Borrower and other borrow-
ers of such Lender or Participant to which such cost applies
and such Lender or Participant shall not be entitled to be com-
pensated for any increased capital requirement unless it is, as
a result of such law, regulation, guideline or request, such
Lender's or Participant's policy generally to seek to exercise
such rights, where available, against other borrowers of such
Lender or Participant.
(b) If any Lender or a Participant in such Lender's
Loans requests compensation under Section 2.14, or if the Bor-
rower is required to pay any additional amount to any Lender or
Participant or any Governmental Authority for the account of
any Lender or Participant pursuant to Section 2.16, or if any
Lender defaults in its obligation to fund Loans hereunder, or
if any Lender shall have a credit rating of C/D (or its equiva-
lent) or lower by Thomson BankWatch, Inc. (or any successor
thereto), then the Borrower shall have the right, at its sole
expense, upon notice to such Lender and the Administrative
Agent, to require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obli-
gations under this Agreement (other than any outstanding Com-
petitive Loans held by it) to an assignee that shall assume
such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Adminis-
trative Agent (and, if a Commitment is being assigned, each
Issuing Bank) which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans (other than Competi-
tive Loans) and participations in LC Disbursements, accrued
interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such out-
standing principal and accrued interest and fees) or the Bor-
rower (in the case of all other
-36-<PAGE>
amounts) and (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.14 or payments
required to be made pursuant to Section 2.16, such assignment
will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower
to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders
that:
SECTION 3.01. Organization; Powers. Each of the
Borrower and the Significant Subsidiaries is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except
where the failure to do so, individually or in the aggregate,
would not result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction
where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The
Transactions and the Acquisition Transactions are within the
Borrower's corporate powers and have been duly authorized by
all necessary corporate action and, if required, action by
shareholders of the Borrower, subject to, in the case of the
Merger, the White Shareholder Approval (as defined in the Merg-
er Agreement). This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each Note when
executed and delivered by the Borrower will constitute, a
legal, valid and binding obligation of the Borrower, enforce-
able in accordance with its terms, subject to applicable bank-
ruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a
proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts.
The Transactions and, upon consummation of any of the Acquisi-
tion Transactions, such Acquisition Transactions, (a) do not
require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force
and effect and such filings which may be made following the
consummation of the Acquisition Transactions to reflect or evi-
dence the consummation thereof, (b) will not violate any appli-
cable law or regulation or the charter, by-laws or other orga-
nizational documents of the Borrower or any Subsidiary or any
order of any Governmental Authority, (c) will not violate or
result in a default, or give rise to a right to require any
material payment, under any indenture, agreement or other
instrument binding upon the Borrower or any Subsidiary or its
assets (or, in the case of Conrail or any of its subsidiaries,
from and after the date that it becomes a Subsidiary, any such
indenture, agreement or other instrument listed on Schedule
3.03 or under any other indenture, agreement or other instru-
ment a violation, default or required payment under which would
result in a Material Adverse Effect), and (d) will not result
in the creation or imposition of any Lien on any material asset
of the Borrower or any Subsidiary (or in the case of Conrail or
any of its
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subsidiaries, from and after the date it becomes a Subsidiary,
any Lien on any of its assets if such Lien would be created
under any indenture, agreement or other instrument listed on
Schedule 3.03 or would result in a Material Adverse Effect).
SECTION 3.04. Financial Condition; No Material
Adverse Change. (a) The Borrower has heretofore furnished to
the Lenders its consolidated statement of financial position,
and statements of earnings, changes in shareholders' equity and
cash flows (i) as of and for the fiscal year ended December 29,
1995, reported on by Ernst & Young LLP, independent public
accountants, and (ii) except for statements of changes in
shareholders' equity, as of and for the fiscal quarter and the
portion of the fiscal year ended September 27, 1996, certified
by a Financial Officer. Such financial statements present
fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments
and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since December 29, 1995 there has been no Mate-
rial Adverse Effect.
SECTION 3.05. Properties. (a) Each of the Borrower
and the Subsidiaries has good title to, or valid leasehold
interests in or rights to use, all its real and personal prop-
erty material to its business, except for such irregularities
that, individually or in the aggregate, would not result in a
Material Adverse Effect.
(b) Each of the Borrower and the Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its busi-
ness, and the use thereof by the Borrower and the Subsidiaries
does not infringe upon the rights of any other Person, except
for any such infringements that, individually or in the aggre-
gate, would not result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) There is no pending litigation or administrative proceed-
ing or other legal or regulatory development (other than with
respect to the Acquisition) that would be reasonably likely to
result in a Material Adverse Effect or to materially adversely
affect the rights and remedies of the Lenders hereunder.
(b) Except for the Disclosed Matters and except with
respect to any other matters that, individually or in the
aggregate, would not result in a Material Adverse Effect, nei-
ther the Borrower nor any Subsidiary (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements.
Each of the Borrower and the Subsidiaries is in compliance with
all laws, regulations and orders of any Governmental Authority
applicable to it or its property (including Regulation U) and
all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individ-
ually or in the aggregate, would not result in a Material
Adverse Effect. No Default has occurred and is continuing.
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SECTION 3.08. Investment and Holding Company Status.
Neither the Borrower nor any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as
defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and the
Subsidiaries has timely filed or caused to be filed all Tax
returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it,
except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Sub-
sidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so would
not result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or
is reasonably expected to occur that, when taken together with
all other such ERISA Events for which liability is reasonably
expected to occur, would result in a Material Adverse Effect.
SECTION 3.11. Disclosure. None of the reports,
financial statements, certificates or other information fur-
nished by or on behalf of the Borrower to the Administrative
Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented
by other information so furnished) contains any material mis-
statement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circum-
stances under which they were made, not misleading; provided
that, with respect to projected or pro forma financial informa-
tion (including the pro forma financial statements as at Janu-
ary 1, 1997 and January 1, 1998 and for the fiscal years ending
in December 1996 and December 1997, respectively, included in
the Confidential Information Memorandum, dated October 1996),
the Borrower represents only that such information was prepared
in good faith based upon assumptions believed to be reasonable
at the time, it being understood that such pro forma statements
or projections are inherently subjective and 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 such projections or pro forma financial statements
will be realized.
SECTION 3.12. Existing Credit Facilities. Schedule
3.12 sets forth a true and complete list of all existing credit
facilities of the Borrower that support commercial paper issued
from time to time by the Borrower (the "Existing Credit Facili-
ties").
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of
the Lenders to make Loans and of the Issuing Banks to issue
Letters of Credit hereunder shall not become effective until
the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall
have received from each party hereto either (i) a counter-
part of this Agreement signed on behalf of such party or
(ii)
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written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed sig-
nature page of this Agreement) that such party has signed
a counterpart of this Agreement.
(b) The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative
Agent and the Lenders and dated the Effective Date) of
(i) Wachtell, Lipton, Rosen & Katz, special counsel for
the Borrower, substantially in the form of Exhibit C, and
(ii) the General Counsel or an Assistant General Counsel
of the Borrower, substantially in the form of Exhibit D.
The Borrower hereby requests such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received (i)
a copy of the resolutions, in form and substance reason-
ably satisfactory to the Administrative Agent, of the
Board of Directors of the Borrower authorizing (A) the
execution, delivery and performance of the Borrower's
obligations set forth in this Agreement and any Notes and
(B) the borrowings contemplated hereunder, certified by
the Secretary or an Assistant Secretary of the Borrower as
of the Effective Date, which certificate shall be in form
and substance reasonably satisfactory to the Administra-
tive Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded, (ii) a certificate of the Borrower, dated the
Effective Date, as to the incumbency and signature of the
officers of the Borrower executing this Agreement and
authorized to execute Notes reasonably satisfactory in
form and substance to the Administrative Agent and (iii)
true and complete copies of the certificate of incorpora-
tion and by-laws of the Borrower, certified as of the
Effective Date as complete and correct copies thereof by
the Secretary or an Assistant Secretary of the Borrower.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the
President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
(e) The Agents shall have received all fees and
other amounts due and payable on or prior to the Effective
Date, including, to the extent invoiced in advance of the
Effective Date, reimbursement or payment of all out-of-
pocket expenses required to be reimbursed or paid by the
Borrower hereunder.
(f) All Existing Credit Facilities shall have been
or shall concurrently be terminated and any amounts out-
standing or owed thereunder in respect of principal or
interest shall have been or shall concurrently be paid in
full.
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclu-
sive and binding.
SECTION 4.02. Each Credit Event. The obligation of
each Lender to make a Loan on the occasion of any Borrowing,
and of each Issuing Bank to issue, amend, renew or extend any
Letter of Credit, is subject to the satisfaction of the follow-
ing conditions:
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(a) The representations and warranties of the Bor-
rower set forth in this Agreement shall be true and cor-
rect on and as of the date of such Borrowing or the date
of issuance, amendment, renewal or extension of such Let-
ter of Credit, as applicable.
(b) At the time of and immediately after giving
effect to such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit, as applica-
ble, no Default shall have occurred and be continuing.
(c) From and after the date of the satisfaction of
the Initial Tender Offer Condition, there shall be no
pending litigation or administrative proceedings or other
legal or regulatory developments with respect to the
Acquisition that, in the reasonable judgment of at least
three of the Agents, would be reasonably likely to prohib-
it the Acquisition or to result in a Material Adverse
Effect and the Agents shall have received a certificate of
a Financial Officer to the effect that no such litiga-
tions, proceedings or developments exist in such Financial
Officer's reasonable judgment; provided that the proposal
for or the pendency of proceedings for approval of the
Acquisition before the Surface Transportation Board, or
any administrative, judicial or other contest with respect
to such approval process at the Surface Transportation
Board, shall not violate this Section.
Each Borrowing and each issuance, amendment, renewal or exten-
sion of a Letter of Credit shall be deemed to constitute a rep-
resentation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a) and (b) of this Sec-
tion.
ARTICLE V
Affirmative Covenants
Until the Commitments shall have expired or been ter-
minated and the principal of and interest on each Loan and all
fees payable hereunder shall have been paid in full and all
Letters of Credit shall have expired or been terminated and all
LC Disbursements shall have been reimbursed, the Borrower cov-
enants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Infor-
mation. The Borrower will furnish to each Lender through the
Administrative Agent:
(a) as soon as available but in any event within
120 days after the end of each fiscal year of the Borrow-
er, its audited consolidated statement of financial posi-
tion and related statements of earnings, changes in share-
holders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on
by Ernst & Young LLP or other independent public accoun-
tants of recognized national standing (without a "going
concern" or like qualification or exception and without
any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial
statements present fairly in all material respects the
financial position, results of operations and cash flows
of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with
-41-<PAGE>
GAAP; provided, however, that the Borrower may deliver, in
lieu of the foregoing, the annual report of the Borrower
for such fiscal year on Form 10-K filed with the SEC, but
only so long as the financial statements contained in such
annual report on Form 10-K are substantially the same in
content as the financial statements referred to in the
preceding provisions of this paragraph (a);
(b) as soon as available but in any event within
60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consoli-
dated statement of financial position and related state-
ments of earnings and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end
of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material
respects the financial position, results of operations and
cash flows of the Borrower and its consolidated Subsidiar-
ies on a consolidated basis in accordance with GAAP, sub-
ject to normal year-end audit adjustments and the absence
of footnotes; 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 SEC, but only so long as the financial statements
contained in such quarterly report on Form 10-Q are sub-
stantially the same in content as the financial statements
referred to in the preceding provisions of this paragraph
(b);
(c) concurrently with each delivery of financial
statements under clause (a) or (b) above, a certificate of
a Financial Officer of the Borrower (i) certifying as to
whether, to the best knowledge of such Financial Officer,
a Default has occurred and is continuing and, if a Default
has occurred and is continuing, specifying the details
thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Section 6.06
and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the
audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the
effect of such change on the financial statements accom-
panying such certificate;
(d) concurrently with each delivery of financial
statements under clause (a) above, a letter signed by the
accounting firm that reported on 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), nothing came to their attention that
caused them to believe that there were any Defaults or
Events of Default involving accounting matters or, if such
accountants became aware of any such Defaults or Events of
Default, specifying the nature thereof;
(e) promptly after the same become publicly avail-
able, copies of all periodic and other reports on Forms 8-
K, 10-Q and 10-K and all proxy statements filed by the
Borrower or any Subsidiary with the SEC or any other docu-
ments distributed by the Borrower to its shareholders gen-
erally which contain the equivalent information to that
contained in such Forms or proxy statements;
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(f) upon any sale or other disposition of Shares by
the Borrower or any Subsidiary, a certificate of a Finan-
cial Officer setting forth in reasonable detail the calcu-
lations required to determine the portion of such Shares
which constitute Restricted Margin Stock, the portion of
such Shares which constitute Unrestricted Margin Stock and
the Net Cash Proceeds attributable to each such portion;
and
(g) promptly following any request therefor, such
other information regarding the operations and financial
condition of the Borrower or any Subsidiary, or compliance
with the terms of this Agreement, as the Administrative
Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Bor-
rower will furnish to each Lender through the Administrative
Agent prompt written notice of the following:
(a) within three Business Days after any Financial
Officer obtains knowledge of the occurrence of any Default
which is continuing, the occurrence of such Default;
(b) (i) the filing or commencement of any action,
suit or proceeding by or before any arbitrator or Govern-
mental Authority against or affecting the Borrower or any
Subsidiary that would, in the reasonable judgment of the
Borrower, result in a Material Adverse Effect and (ii)
without limiting the foregoing, the filing or commencement
of, or any material development in, any litigation or
administrative proceeding with respect to the Acquisition
prior to the consummation thereof;
(c) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred,
would, in the reasonable judgment of the Borrower, result
in a Material Adverse Effect;
(d) the final denial (after exhaustion of all avail-
able appeals) of any governmental approval required for
the Acquisition or the election by the Borrower to abandon
the Acquisition (which notice shall also specify the
aggregate face amount of outstanding commercial paper of
the Borrower supported by the Commitments, after giving
effect on a ratable basis to any other facilities of the
Borrower then providing support for such commercial
paper); and
(e) any other development that results in, or would
in the reasonable judgment of the Borrower result in, a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied
by a statement of a Financial Officer or other executive
officer of the Borrower setting forth the details of the event
or development requiring such notice and any action taken or
proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The
Borrower will, and will cause each Significant Subsidiary to,
do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises it reason-
ably deems necessary to the conduct of its business; provided
-43-<PAGE>
that the foregoing shall not prohibit any merger, consolidation
or disposition permitted under Section 6.05 or prohibit the
Borrower or any Significant Subsidiary from discontinuing any
business or forfeiting any right, license, permit, privilege or
franchise to the extent it reasonably deems appropriate in the
ordinary course of its business.
SECTION 5.04. Payment of Obligations. The Borrower
will, and will cause each Subsidiary to, pay its obligations,
including Tax liabilities, that, if not paid, would result in a
Material Adverse Effect before the same shall become delinquent
or in default, except where the validity or amount thereof is
being contested in good faith by appropriate proceedings.
SECTION 5.05. Maintenance of Properties; Insurance.
The Borrower will, and will cause each Significant Subsidiary
to, (a) keep and maintain all property material to the conduct
of its business in good working order and condition, ordinary
wear and tear excepted, and (b) maintain insurance with finan-
cially sound insurance companies (including captive or affili-
ated insurance companies) or, to the extent consistent with
prudent business practice, programs of self-insurance, in each
case in such amounts, with such deductibles and against such
risks as are reasonably appropriate.
SECTION 5.06. Books and Records; Inspection Rights.
The Borrower will, and will cause each Significant Subsidiary
to, keep and maintain proper books of record and account in
accordance with GAAP. The Borrower will, and will cause each
Subsidiary to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior
notice and coordinated with the Administrative Agent, to visit
and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all
during normal business hours and at such reasonable times and
as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower
will, and will cause each Subsidiary to, comply with all laws,
rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to
do so, individually or in the aggregate, would not result in a
Material Adverse Effect.
SECTION 5.08. Use of Proceeds, Commitments and Let-
ters of Credit. The proceeds of the Loans may be used to
finance the Acquisition and, after the Acquisition or the
occurrence of the events described in Section 2.08(b), for
working capital and other general corporate purposes, and a
portion of the Commitments may be used to support commercial
paper issued by the Borrower. Letters of Credit will be issued
only to support obligations of the Borrower and the Subsidiar-
ies, contingent or otherwise, incurred or arising in the ordi-
nary course of business.
SECTION 5.09. Federal Regulations. No part of the
proceeds of any Loan will be used for "purchasing" or "carry-
ing" (within the respective meanings of each of the quoted
terms under Regulation G or Regulation U of the Board as now
and from time to time hereafter in effect) any Margin Stock in
violation of the applicable requirements of such Regulations.
If requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with
the
-44-<PAGE>
requirements of FR Form G-3 or FR Form U-1 referred to in said
Regulation G or Regulation U, as the case may be.
ARTICLE VI
Negative Covenants
Until the Commitments shall have expired or been ter-
minated and the principal of and interest on each Loan and all
fees payable hereunder shall have been paid in full and all
Letters of Credit shall have expired or been terminated and all
LC Disbursements shall have been reimbursed, the Borrower cov-
enants and agrees with the Lenders that:
SECTION 6.01. Limitation on Share Purchase Debt.
The Borrower will not, and will not permit any Subsidiary to,
create, incur or assume Debt in an aggregate principal amount
for the Borrower and the Subsidiaries in excess of
$4,000,000,000 the proceeds of which are used to purchase
Shares.
SECTION 6.02. Limitation on Subsidiary Debt. The
Borrower will not permit any Subsidiary to create, incur or
assume any Debt (other than Debt substantially secured by a
Lien or Liens on assets of such Subsidiary permitted under Sec-
tion 6.03) after the Effective Date, except:
(a) extensions, renewals and replacements of any
Debt existing on the date hereof that do not increase the
outstanding principal amount thereof (other than to
finance payments made in connection therewith);
(b) Debt of any Subsidiary to the Borrower or any
other Subsidiary;
(c) Debt of any Person that becomes a Subsidiary
after the date hereof; provided that such Debt exists at
the time such Person becomes a Subsidiary and is not
created in contemplation of or in connection with such
Person becoming a Subsidiary;
(d) Debt of any Subsidiary as an account party in
respect of letters of credit; and
(e) other Debt; provided that, at the time of the
creation, incurrence or assumption of such Debt and after
giving effect thereto, the aggregate principal amount of
all such Debt of the Subsidiaries does not exceed an
amount equal to 10% of Total Capitalization at such time.
SECTION 6.03. Liens. The Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or
permit to exist any Lien on any property or asset now
-45-<PAGE>
owned or hereafter acquired by it (other than Unrestricted
Margin Stock) to secure Debt of the Borrower or any Subsidiary,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Bor-
rower or any Subsidiary existing on the date hereof; pro-
vided that (i) such Lien shall not apply to any other
property or asset of the Borrower or any Subsidiary and
(ii) such Lien shall secure only those obligations which
it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof;
(c) any Lien existing on any property or asset prior
to the acquisition thereof by the Borrower or any Subsid-
iary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to
the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a
Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or
any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisi-
tion or the date such Person becomes a Subsidiary, as the
case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal
amount thereof;
(d) Liens on railroad locomotives, auto racks, roll-
ing stock, vessels, barges, containers, vehicles, termi-
nals and other fixed or capital assets acquired, con-
structed, improved or refurbished by or for the Borrower
or any Subsidiary; provided that (i) such Liens and the
Debt secured thereby are incurred prior to or within two
years (or, during the period from the Effective Date to
the date six months thereafter, two and one-half years)
after such acquisition or the completion of such construc-
tion, improvement or refurbishment, (ii) the Debt secured
thereby does not exceed 100% of the cost of acquiring,
constructing, improving or refurbishing such assets and
(iii) such Liens shall not apply to any other property or
assets of the Borrower or any Subsidiary;
(e) Liens securing Debt in respect of the transac-
tions described in Schedule 6.03; and
(f) Liens not otherwise permitted hereunder; provid-
ed that, at the time of the creation, incurrence or as-
sumption of any Debt secured by any such Lien and after
giving effect thereto, the aggregate principal amount of
Debt of the Borrower and the Subsidiaries secured by Liens
permitted under this clause (f), together with the Attrib-
utable Debt then outstanding in respect of Sale/Leaseback
Transactions permitted under Section 6.04(c) in respect of
which the obligations of the Borrower or any Subsidiary do
not constitute Capital Lease Obligations, does not exceed
an amount equal to 10% of Total Capitalization at such
time.
SECTION 6.04. Limitation on Sale/Leaseback Transac-
tions. The Borrower will not, and will not permit any Subsid-
iary to, enter into any arrangement with any Person providing
for the leasing by the Borrower or any Subsidiary of real or
personal property (other than
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Unrestricted Margin Stock) which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person
or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or
rental obligations of the Borrower or such Subsidiary (a "Sale/
Leaseback Transaction"), except:
(a) any Sale/Leaseback Transaction described in
Schedule 6.03;
(b) any arrangement with respect to any railroad
locomotive, auto rack, rolling stock, vessel, barge, con-
tainer, vehicle, terminal or other fixed or capital asset;
provided that such arrangement is entered into prior to or
within two years (or, during the period from the Effective
Date to the date six months thereafter, two and one-half
years) after the acquisition, construction, improvement or
refurbishment of such railroad locomotive, auto rack,
rolling stock, vessel, barge, container, vehicle, terminal
or other fixed or capital asset; and
(c) Sale/Leaseback Transactions not otherwise per-
mitted hereunder; provided that, (i) if the obligations of
the Borrower or any Subsidiary in respect of any such
Sale/Leaseback Transaction constitute Capital Lease Obli-
gations, the Liens created in respect of such Sale/Lease-
back Transactions are permitted under Section 6.03 and
(ii) if the obligations of the Borrower or any Subsidiary
in respect of any such Sale/Leaseback Transaction do not
constitute Capital Lease Obligations, at the time of the
creation, incurrence or assumption of any Attributable
Debt in connection with such Sale/Leaseback Transaction
and after giving effect thereto, the aggregate principal
amount of Attributable Debt of the Borrower and the Sub-
sidiaries then outstanding in respect of leases entered
into in connection with Sale/Leaseback Transactions per-
mitted under this clause (ii), together with the aggregate
principal amount of Debt then secured by Liens permitted
under Section 6.03(f), does not exceed an amount equal to
10% of Total Capitalization at such time.
SECTION 6.05. Fundamental Changes. The Borrower
will not merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one trans-
action or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired), unless
(a) the surviving corporation in any such merger or consolida-
tion or the Person which acquires all or substantially all of
the assets of the Borrower 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 Cor-
poration") and shall expressly assume, by amendment to this
Agreement executed by the Borrower, the Successor Corporation
and the Administrative Agent, the due and punctual payment of
the principal of and interest on the Loans and all other
amounts payable under this Agreement and any Notes and the pay-
ment and performance of every covenant hereof on the part of
the Borrower to be performed or observed, (b) immediately after
giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing and (c) the Bor-
rower shall have delivered a certificate of a Financial Officer
and a written opinion of counsel reasonably satisfactory to the
Administrative Agent (who may be counsel to the Borrower), each
stating that such transaction and amendment comply with this
Section and that all conditions precedent herein provided for
relating to such transaction have been satisfied; provided that
the
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Borrower and the Subsidiaries will be permitted to sell,
transfer and otherwise dispose of Unrestricted Margin Stock
without regard to the foregoing restrictions.
SECTION 6.06. Financial Covenant. The Borrower
shall not permit the ratio of Total Debt to Total Capitaliza-
tion to exceed (a) at any time prior to the Merger, 0.65 to
1.00, and (b) at any time thereafter, 0.55 to 1.00.
SECTION 6.07. Ownership of Railroad Subsidiaries.
The Borrower shall not permit any Railroad Subsidiary to cease
to be a wholly-owned Subsidiary of the Borrower; provided that
neither the Borrower nor any Subsidiary shall be in any way
restricted under this Section from selling or otherwise dispos-
ing of Unrestricted Margin Stock.
SECTION 6.08. Sales of Unrestricted Margin Stock.
The Borrower shall not, and shall not permit any Subsidiary to,
(a) sell or otherwise dispose of any Shares constituting Unre-
stricted Margin Stock other than in exchange for cash or cash
equivalents or (b) fail to maintain the proceeds of any such
sale or other disposition as cash, cash equivalents or short-
term investments; provided that, to the extent that the Bor-
rower shall elect to reduce the Commitments pursuant to Section
2.08(d) at any time after any such sale or other disposition,
the requirements of clause (b) above shall cease to apply to
the portion of such proceeds as shall be equal to the aggregate
amount of any such reductions.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default")
shall occur:
(a) the Borrower shall fail to pay any principal of
any Loan or any reimbursement obligation in respect of any
LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date
fixed for prepayment thereof or otherwise; provided that,
if any such failure shall result from the malfunctioning
or shutdown of any wire transfer or other payment system
reasonably 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 reason-
ably 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;
(b) the Borrower shall fail to pay any interest on
any Loan or any fee or any other amount (other than an
amount referred to in clause (a) of this Article) payable
under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unreme-
died for a period of ten days;
(c) any representation or warranty made or deemed
made by or on behalf of the Borrower or any Subsidiary in
or in connection with this Agreement or any amendment or
modification hereof, or in any report, certificate, finan-
cial statement or other document
-48-<PAGE>
furnished pursuant to or in connection with this Agreement
or any amendment or modification hereof, shall prove to
have been incorrect in any material respect when made or
deemed made;
(d) the Borrower shall fail to observe or perform
any covenant, condition or agreement contained in this
Agreement (other than those specified in clause (a), (b)
or (c) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof
from the Administrative Agent (given at the request of any
Lender) to the Borrower;
(e) any event of default or similar event or condi-
tion occurs (and continues after any applicable grace
period) under any mortgage, indenture or instrument under
which there may be issued, or by which there may be
secured or evidenced, any Material Indebtedness, whether
such Material Indebtedness now exists or shall hereafter
be created and shall result in any Material Indebtedness
becoming due prior to its scheduled maturity (other than
any such event or condition arising solely out of the vio-
lation by the Borrower or any Subsidiary of any covenant
in any way restricting the Borrower's, or any such Subsid-
iary's, right or ability to sell, pledge or otherwise dis-
pose of Unrestricted Margin Stock) and such acceleration
shall not be rescinded or annulled in accordance with the
terms of such mortgage, indenture or investment, as the
same case may be; provided that this clause (e) shall not
apply to secured Indebtedness that becomes due as a result
of the voluntary permitted sale or transfer of the prop-
erty or assets securing such Indebtedness;
(f) an involuntary proceeding shall be commenced or
an involuntary petition shall be filed seeking (i) liqui-
dation, reorganization or other relief in respect of the
Borrower or any Significant Subsidiary or its debts, or of
a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect or (ii) the appointment of
a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall con-
tinue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be
entered;
(g) the Borrower or any Significant Subsidiary shall
(i) voluntarily commence any proceeding or file any peti-
tion seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolven-
cy, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding
or petition described in clause (f) of this Article, (iii)
apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Significant Subsidiary or
for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(h) the Borrower or any Significant Subsidiary shall
become unable, admit in writing or fail generally to pay
its debts as they become due;
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(i) one or more judgments for the payment of money
in an aggregate amount (to the extent not covered by
insurance) in excess of $75,000,000 shall be rendered
against the Borrower, any Subsidiary or any combination
thereof and the same shall remain unpaid or undischarged
for a period of 60 consecutive days during which execution
shall not be effectively stayed;
(j) an ERISA Event shall have occurred that, in the
reasonable opinion of the Majority Lenders, when taken
together with all other ERISA Events that have occurred,
would result in a Material Adverse Effect; or
(k) a Change in Control shall occur and on the date
which is four months after the occurrence of such Change
in Control the Applicable Rate shall be determined by ref-
erence to Category 6;
then, and in every such event (other than an event with respect
to the Borrower described in clause (f) or (g) of this Article
as a result of which the Administrative Agent and the Lenders
shall not be permitted, without special relief, to exercise
their rights or remedies under clause (i) or (ii) below), and
at any time thereafter during the continuance of such event,
the Administrative Agent (with the consent of the Majority
Lenders) may, and at the request of the Majority Lenders shall,
by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any princi-
pal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Bor-
rower; and in case of any event with respect to the Borrower
described in clause (f) or (g) of this Article described above,
the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower
accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Agents
Each of the Lenders and Issuing Banks hereby irrevo-
cably appoints The Chase Manhattan Bank as its agent and autho-
rizes The Chase Manhattan Bank to take such actions on its
behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto. Each
Lender acknowledges that Bank of America National Trust and
Savings Association and NationsBank, N.A. shall be Co-Syndica-
tion Agents with respect to this Agreement and that The Bank of
Nova Scotia shall be the Documentation Agent with respect to
this Agreement.
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Each bank serving as an Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any
other Lender and may exercise the same as though it were not an
Agent, and such bank and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of busi-
ness with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not an Agent hereunder.
No Agent shall have any duties or obligations except
those expressly set forth herein. Without limiting the gener-
ality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) no Agent shall have
any duty to take any discretionary action or exercise any dis-
cretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Lenders entitled to so
require, and (c) except as expressly set forth herein, no Agent
shall have any duty to disclose, nor shall such Agent be liable
for the failure to disclose, any information relating to the
Borrower or any of the Subsidiaries that is communicated to or
obtained by such Agent or any of its Affiliates in any capac-
ity. The Administrative Agent shall not be liable for any
action taken or not taken by it with the consent or at the
request of the Lenders entitled to so require or in the absence
of its own gross negligence or wilful misconduct. No Agent
shall be deemed to have knowledge of any Default unless and
until written notice thereof is given to the Administrative
Agent by the Borrower or a Lender, and no Agent shall be
responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made to any Lend-
er in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereun-
der or in connection herewith, (iii) the performance or obser-
vance by the Borrower of any of the covenants, agreements or
other terms or, except as provided in clause (v) below, condi-
tions set forth herein, (iv) with respect to parties other than
such Agent, the validity, enforceability, effectiveness or gen-
uineness of this Agreement or any other agreement, instrument
or document, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the
Administrative Agent.
Each Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other
writing believed by it in good faith to be genuine and to have
been signed or sent by the proper Person. Each Agent also may
rely upon any statement made to it orally or by telephone and
believed by it in good faith to be made by the proper Person,
and shall not incur any liability for relying thereon. Each
Agent may consult with legal counsel (who may be counsel for
the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or
not taken by it in good faith in accordance with the advice of
any such counsel, accountants or experts.
The Administrative Agent may perform any and all its
duties and exercise its rights and powers by or through any one
or more sub-agents appointed by the Administrative Agent and
for which it is responsible. The Administrative Agent and any
such sub-agent may perform any and all its duties and exercise
its rights and powers through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent reasonably selected by the Adminis-
trative Agent and to the Related Parties of the Agents and any
such sub-agent, and shall apply to their respective activities
in connection with the syndication of the credit facilities
provided for herein as well as activities as Agent.
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Subject to the appointment and acceptance of a suc-
cessor Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the
Lenders, the Issuing Banks and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right, 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 shall have occurred and be continuing), to
appoint a successor. If no successor shall have been so
appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Admin-
istrative Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent which shall be
a commercial bank with an office in New York, New York and hav-
ing a combined capital and surplus of at least $1,000,000,000.
Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those pay-
able to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Sec-
tion 9.03 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently
and without reliance upon any Agent or any other Lender and
based on such documents and information as it has deemed appro-
priate, made its own credit analysis and decision to enter into
this Agreement. Each Lender represents that it has not relied
upon the Unrestricted Margin Stock in its credit analysis or
its decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance
upon any Agent or any other Lender and based on such documents
and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any related agree-
ment or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of
notices and other communications expressly permitted to be giv-
en by telephone, all notices and other communications provided
for herein shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered
mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at CSX Corporation,
One James Center, 901 East Cary Street, Richmond, VA
23219, Attention of Treasurer (Telecopy No. (804) 783-
1346);
(b) if to the Administrative Agent, to The Chase
Manhattan Bank, Agent Bank Services, One Chase Manhattan
Plaza, 8th Floor, New York, New York 10081, Attention of
Sandra Miklave (Telecopy No. (212) 552-5658), with a copy
to The Chase Manhattan
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Bank, 270 Park Avenue, New York, New York 10017, Attention
of Julie Long (Telecopy No. (212) 972-9854); and
(c) if to any Issuing Bank or any other Lender, to
it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the
other parties hereto. All notices and other communications
given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure
or delay by the Administrative Agent, any Issuing Bank or any
Lender in exercising any right or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise
of any such right or power, or any abandonment or discontinu-
ance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative
Agent, the Issuing Banks and the Lenders hereunder are cumula-
tive and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be per-
mitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the general-
ity of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any
Lender or any Issuing Bank may have had notice or knowledge of
such Default at the time.
(b) Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an agree-
ment or agreements in writing entered into by the Borrower and
the Majority Lenders or by the Borrower and the Administrative
Agent with the consent of the Majority Lenders; provided that
no such agreement shall (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce
the rate of interest thereon, or reduce any fees payable here-
under, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any inter-
est thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby, (iv) change
Section 2.10(c) or change 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, in
either case without the written consent of each Lender, or (v)
change any of the provisions of this Section or the definition
of "Majority Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each
Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Adminis-
trative Agent or any Issuing Bank hereunder without the prior
written consent of the Administrative Agent or such Issuing
Bank, as the case may be.
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SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affili-
ates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amend-
ments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all out-of-pocket expenses incurred
by each Issuing Bank in connection with the issuance, amend-
ment, renewal or extension by it of any Letter of Credit or any
demand for payment thereunder and (iii) all out-of-pocket
expenses incurred by the Administrative Agent, any Issuing Bank
or any Lender, including the reasonable fees, charges and dis-
bursements of any counsel for the Administrative Agent, any
Issuing Bank or any Lender, in connection with the enforcement
or protection of its rights in connection with this Agreement
or any Note, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restruc-
turing or negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative
Agent, each Issuing Bank and each Lender, and each Related Par-
ty of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harm-
less from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby,
the performance by the parties hereto of their respective obli-
gations hereunder or thereunder or the consummation of the
Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by an Issuing Bank to honor a
demand for payment under a Letter of Credit issued by it if the
documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), or
(iii) any actual or prospective claim, litigation, investiga-
tion or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory and regardless of
whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or wilful
misconduct of such Indemnitee. The foregoing indemnification
shall not cover any such claims, damages, losses, liabilities
or expenses relating to (i) any Taxes or (ii) any costs or cap-
ital requirements (whenever imposed) to any Lender or any cor-
poration controlling such Lender as a result of such Lender's
Commitment or its Loans or participations in Letters of Credit,
but in each case without prejudice to Sections 2.14, 2.15, 2.16
and 9.03.
(c) To the extent that the Borrower fails to pay any
amount required to be paid by it to the Administrative Agent or
an Issuing Bank under paragraph (a) or (b) of this Section,
each Lender severally agrees to pay to the Administrative Agent
or such Issuing Bank, as the case may be, such Lender's Appli-
cable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indem-
nified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Admin-
istrative Agent or such Issuing Bank in its capacity as such.
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(d) To the extent permitted by applicable law, the
Borrower shall not assert, and hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indi-
rect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument con-
templated hereby, the Transactions, any Loan or Letter of Cred-
it or the use of the proceeds thereof.
(e) All amounts due under this Section shall be pay-
able promptly after written demand therefor, accompanied by
such documentation as the Borrower may reasonably request to
evidence the basis for, and calculation of, such amount.
SECTION 9.04. Successors and Assigns. (a) The pro-
visions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective succes-
sors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obliga-
tions hereunder without the prior written consent of each Lend-
er (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respec-
tive successors and assigns permitted hereby and, to the extent
expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by rea-
son of this Agreement.
(b) Any Lender may, at no additional cost to the
Borrower, assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time owing
to it); provided that (i) except in the case of an assignment
to a Lender or an Affiliate of a Lender, each of the Borrower,
the Administrative Agent and the Issuing Banks must give its
prior written consent to such assignment (which consent shall
not be unreasonably withheld), (ii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment and the amount
of its Commitment remaining thereafter (determined in each case
as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall
not be less than $25,000,000 unless each of the Borrower and
the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate
part of all the assigning Lender's rights and obligations under
this Agreement (including its Revolving Loans), except that
this clause (iii) shall not apply to rights in respect of out-
standing Competitive Loans, (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and
recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; provided further that any consent
of the Borrower otherwise required under this paragraph shall
not be required if an Event of Default under clause (f) or (g)
of Article VII has occurred and is continuing. Upon acceptance
and recording pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto
and, to the extent of (but not greater than) the interest
assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Acceptance, be released from its obliga-
tions under this Agreement (and, in the
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case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and
9.03 and be subject to Section 9.12). Any assignment or trans-
fer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a par-
ticipation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this pur-
pose as an agent of the Borrower, shall maintain at one of its
offices in The City of New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be
prima facie evidence thereof absent manifest error, and the
Borrower, the Administrative Agent, the Issuing Banks and the
Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection dur-
ing normal business hours by the Borrower at any reasonable
time and from time to time upon reasonable advance notice.
(d) Upon its receipt of a duly completed Assignment
and Acceptance executed by an assigning Lender and an assignee,
the assignee's completed Administrative Questionnaire (unless
the assignee shall already be a Lender hereunder), the process-
ing and recordation fee referred to in paragraph (b) of this
Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Acceptance and record the informa-
tion contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of, and at
no additional cost to, the Borrower, the Administrative Agent
or the Issuing Banks, sell participations to one or more banks
or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agree-
ment shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the perfor-
mance of such obligations and (iii) the Borrower, the Adminis-
trative Agent, the Issuing Banks and the other Lenders shall
continue to deal solely and directly with such Lender in con-
nection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lend-
er shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects
such Participant. Subject to paragraph (f) of this Section,
the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.14, 2.15 and 2.16 to the same (but
no greater) extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Sec-
tion.
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(f) A Participant shall not be entitled to receive
any greater payment under Section 2.14, 2.15 or 2.16 than the
applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant.
(g) Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including
any such pledge or assignment to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assign-
ment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such assignee for
such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and
in the certificates or other instruments delivered in connec-
tion with or pursuant to this Agreement shall be considered to
have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or
on its behalf and notwithstanding that any Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest
on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.14, 2.15, 2.16, 9.03
and 9.12 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transac-
tions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Com-
mitments or the termination of this Agreement or any provision
hereof.
SECTION 9.06. Counterparts; Integration; Effective-
ness. This Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable
to the Administrative Agent or any Issuing Bank constitute the
entire contract among the parties relating to the subject mat-
ter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together,
bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permit-
ted assigns. Delivery of an executed counterpart of a signa-
ture page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this
Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a par-
ticular provision in a particular jurisdiction shall not inval-
idate such provision in any other jurisdiction.
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SECTION 9.08. Right of Setoff. If an Event of
Default shall have occurred and be continuing, each Lender 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 Lender to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower
now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have
made any demand under this Agreement and although such obliga-
tions may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process. (a) This Agreement shall be construed
in accordance with and governed by the law of the State of New
York.
(b) The Borrower hereby irrevocably and uncondition-
ally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sit-
ting in New York County and of the United States District Court
of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement
of any judgment resulting therefrom, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard
and determined in such New York State court or, to the extent
permitted by law, in such Federal court. Each of the parties
hereto agrees that a final and non-appealable judgment in any
such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent, any Issu-
ing Bank or any Lender may otherwise have to bring any action
or proceeding relating to this Agreement against the Borrower
or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and uncondition-
ally waives, to the fullest extent it may legally and effec-
tively do so, any objection which it may now or hereafter have
to the laying of venue of any suit, action or proceeding aris-
ing out of or relating to this Agreement in any court referred
to in paragraph (b) of this Section. Each of the parties here-
to hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably con-
sents to service of process in the manner provided for notices
in Section 9.01. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLI-
CABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD
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NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.11. Headings. Article and Section head-
ings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Adminis-
trative Agent, the Issuing Banks and the Lenders agrees to
maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and
its Affiliates' directors, officers, employees, representatives
and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature
of such Information and instructed to keep such Information
confidential), (b) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, or
requested by any regulatory authority, but only, except with
respect to bank examiners, after the Administrative Agent or
the relevant Issuing Bank or Lender provides such written
notice to the Borrower of such proposed disclosure as is rea-
sonable under the circumstances and permitted by law, (c) to
any other party to this Agreement, (d) in connection with the
exercise of any remedies hereunder or any suit, action or pro-
ceeding relating to this Agreement or any Note or the enforce-
ment of rights hereunder or thereunder, (e) subject to an
agreement containing provisions substantially the same as those
of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or
obligations under this Agreement, (f) with the consent of the
Borrower or (g) to the extent such Information (i) becomes pub-
licly available other than as a result of a breach of this Sec-
tion, (ii) becomes available to the Administrative Agent, any
Issuing Bank or any Lender on a nonconfidential basis from a
source other than the Borrower (other than a source known to be
disclosing such Information in violation of a confidentiality
agreement with the Borrower) or (iii) was available to the
Administrative Agent or the relevant Issuing Bank or Lender
prior to such Person becoming a Lender. For the purposes of
this Section, "Information" means all information received from
the Borrower relating to the Borrower or its business, other
than any such information that is available to the Administra-
tive Agent, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the
date hereof, such information is clearly identified at the time
of delivery as confidential. Any Person required to maintain
the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person
would accord to its own confidential information.
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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective autho-
rized officers as of the day and year first above written.
CSX CORPORATION,
as Borrower
by
/s/ David D. Owen
_______________________
Name: David D. Owen
Title: Managing Director
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Co-Syndication Agent and
as a Lender,
by
/s/ Craig S. Munro
_________________________
Name: Craig S. Munro
Title: Managing Director-Corporate
Finance
THE BANK OF NOVA SCOTIA,
as Documentation Agent and
as a Lender,
by
/s/ James R. Trimble
_________________________
Name: James R. Trimble
Title: Senior Relationship
Manager
THE CHASE MANHATTAN BANK,
as Administrative Agent and
as a Lender,
by
/s/ Julie S. Long
_________________________
Name: Julie S. Long
Title: Vice President
NATIONSBANK, N.A.,
as Co-Syndication Agent and
as a Lender,
by
/s/ E. Turner Coggin
_________________________
Name: E. Turner Coggin
Title: Senior Vice President
-61-<PAGE>
PNC BANK, NATIONAL ASSOCIATION
by
/s/ Daniel K. Fitzpatrick
_________________________
Name: Daniel K. Fitzpatrick
Title: Vice President
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THE BANK OF TOKYO-MITSUBISHI, LTD.
by
/s/ Randy L. Glass
_________________________
Name: Randy L. Glass
Title: Vice President
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ABN AMRO BANK N.V., NEW YORK
BRANCH
by
/s/ Nancy W. Lanzoni
_________________________
Name: Nancy W. Lanzoni
Title: Group Vice President
by
/s/ David W. Stack
_________________________
Name: David W. Stack
Title: Assistant Vice President
-64-<PAGE>
THE BANK OF NEW YORK
by
/s/ David C. Siegel
_________________________
Name: David C. Siegel
Title: Assistant Vice President
-65-<PAGE>
CITIBANK, N.A.
by
/s/ Rosemary M. Bell
_________________________
Name: Rosemary M. Bell
Title: Attorney-in-Fact
-66-<PAGE>
CREDIT SUISSE
by
/s/ Kristinn R. Kristinsson
_________________________
Name: Kristinn R. Kristinsson
Title: Associate
by
/s/ William P. Murray
________________________
Name: Member of Senior
Management
-67-<PAGE>
FIRST NATIONAL BANK OF CHICAGO
by
/s/ Paul A. Gargula
_________________________
Name: Paul A. Gargula
Title: Vice President
-68-<PAGE>
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
by
/s/ Teiji Teramoto
_________________________
Name: Teiji Teramoto
Title: Vice President and Manager
-69-<PAGE>
THE INDUSTRIAL BANK OF JAPAN,
LIMITED NEW YORK BRANCH
by
/s/ John V. Veltri
_________________________
Name: John V. Veltri
Title: Senior Vice President
-70-<PAGE>
MELLON BANK, N.A.
by
/s/ Martin J. Randal
_________________________
Name: Martin J. Randal
Title: Banking Officer
-71-<PAGE>
ROYAL BANK OF CANADA
by
/s/ Lorna Mendelson
_________________________
Name: Lorna Mendelson
Title: Manager
-72-<PAGE>
BANK OF MONTREAL
by
/s/ Edward P. McGuire
_________________________
Name: Edward P. McGuire
Title: Director
-73-<PAGE>
BARNETT BANK N.A.-JACKSONVILLE
by
/s/ Cindy S. Stover
_________________________
Name: Cindy S. Stover
Title: Vice President
-74-<PAGE>
CORESTATES BANK, N.A.
by
/s/ Beverly J. Coller
_________________________
Name: Beverly J. Coller
Title: Vice President
-75-<PAGE>
CAISSE NATIONALE DE CREDIT
AGRICOLE
by
/s/ Craig Welch
_________________________
Name: Craig Welch
Title: First Vice President
-76-<PAGE>
DEUTSCHE BANK A.G., NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
by
/s/ Thomas A. Foley
_________________________
Name: Thomas A. Foley
Title: Assistant Vice President
by
/s/ Stephan A. Wiedemann
_________________________
Name: Stephan A. Wiedemann
Title: Vice President
-77-<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH
by
/s/ Timothy White
_________________________
Name: Timothy White
Title: Vice President and Team
Leader
-78-<PAGE>
FLEET NATIONAL BANK
by
/s/ Frank Benesh
_________________________
Name: Frank Benesh
Title: Vice President
-79-<PAGE>
THE MITSUBISHI TRUST AND
BANKING CORPORATION
by
/s/ Hachiro Hosoda
_________________________
Name: Hachiro Hosoda
Title: Senior Vice President
-80-<PAGE>
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED, NEW YORK
BRANCH
by
/s/ Shigeru Tsujimoto
_________________________
Name: Shigeru Tsujimoto
Title: Senior Vice President and
Manager
-81-<PAGE>
NATIONAL AUSTRALIA BANK LIMITED
by
/s/ R. Adams Perry III
_________________________
Name: R. Adams Perry III
Title: Senior Vice President and
Head of Corporate Banking
& Finance
-82-<PAGE>
THE NORINCHUKIN BANK NEW YORK
BRANCH
by
/s/ Takeshi Akimoto
_________________________
Name: Takeshi Akimoto
Title: General Manager
-83-<PAGE>
THE NORTHERN TRUST COMPANY
by
/s/ Eric O. Strickland
_________________________
Name: Eric O. Strickland
Title: Vice President
-84-<PAGE>
THE SAKURA BANK, LIMITED
by
/s/ Yasumasa Kikuchi
_________________________
Name: Yasumasa Kikuchi
Title: Senior Vice President
-85-<PAGE>
THE SANWA BANK, LIMITED
by
/s/ Christian Kambour
_________________________
Name: Christian Kambour
Title: Assistant Vice President
-86-<PAGE>
STANDARD CHARTERED BANK
by
/s/ Christopher R. Knight
_________________________
Name: Christopher R. Knight
Title: Vice President
by
/s/ Jacob Yahiayan
________________________
Name: Jacob Yahiayan
Title: Assistant Vice President
-87-<PAGE>
THE YASUDA TRUST & BANKING CO.,
LTD.
by
/s/ Makoto Tagawa
_________________________
Name: Makoto Tagawa
Title: Deputy General Manager
-88-<PAGE>
CRESTAR BANK
by
/s/ Keith A. Hubbard
_________________________
Name: Keith A. Hubbard
Title: Senior Vice President
-89-<PAGE>
SCHEDULE 2.01
LENDER NAMES, ADDRESSES FOR NOTICES AND COMMITMENTS
NAMES/ADDRESS COMMITMENT
------------- ----------
Bank of America National Trust $250,000,000
and Savings Association
231 South LaSalle Street
Area 10J
Chicago, IL 60697
Attention: Peter Dales
Tel: 312-828-2809
Fax: 312-828-1997
The Bank of Nova Scotia $250,000,000
One Liberty Plaza
26th Floor
New York, NY 10006
Attention: James Trimble
Tel: 212-225-5011
Fax: 212-225-5090
The Chase Manhattan Bank $250,000,000
Agent Bank Services
One Chase Manhattan Plaza
8th Floor
New York, NY 10081
Attention: Sandra Miklave
Tel: 212-552-7953
Fax: 212-552-5658
NationsBank, N.A. $250,000,000
NationsBank Pavilion
4th Floor
1111 East Main Street
Richmond, VA 23219-2321
Attention: Turner Coggin
Tel: 804-788-3455
Fax: 804-788-2908/3669
PNC Bank, National Association $230,000,000
1600 Market Street
Philadelphia, PA 19103
Attention: Dan Fitzpatrick
Tel: 215-585-5622
Fax: 215-585-5972<PAGE>
NAMES/ADDRESS COMMITMENT
---------------------------- ---------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. $210,000,000
Georgia Pacific Center
Suite 4970
133 Peachtree Street, N.E.
Atlanta, GA 30303-1808
Attention: Randy Glass
Tel: 404-222-4207
Fax: 404-577-1155
ABN AMRO Bank N.V., New York Branch $190,000,000
500 Park Avenue
2nd Floor
New York, NY 10022
Attention: Pam Delvecchio
Tel: 212-446-4289
Fax: 212-446-7468
The Bank of New York $190,000,000
One Wall Street
15th Floor
New York, NY 10286
Attention: Gregory Owens
Tel: 212-635-1130
Fax: 212-635-1698
Citibank, N.A. $190,000,000
400 Perimeter Center Terrace
Suite 600
Atlanta, GA 30346
Attention: Hilary Hylan
Tel: 770-668-8602
Fax: 770-668-8137
Credit Suisse $190,000,000
12 East 49th Street
41st Floor
New York, NY 10017
Attention: Kristinn R. Kristinsson
Tel: 212-238-5206
Fax: 212-238-5245
-2-<PAGE>
NAMES/ADDRESS COMMITMENT
---------------------------- ---------------------------------
First National Bank of Chicago $190,000,000
One First National Plaza
Mail Suite 0374
Chicago, IL 60670-0374
Attention: Tim King
Tel: 312-732-6456
Fax: 312-732-3885
The Fuji Bank, Limited New York $190,000,000
Branch
2 World Trade Center
79th Floor
New York, NY 10048
Attention: Colby Yoon
Tel: 212-898-2140
Fax: 212-912-0516
The Industrial Bank of Japan, $190,000,000
Limited
New York Branch
245 Park Avenue
23rd Floor
New York, NY 10167
Attention: Adrienne Molloy
Tel: 212-557-3500
Fax: 212-856-9450
Mellon Bank, N.A. $190,000,000
1735 Market Street
Room 750
Philadelphia, PA 19103
Attention: Martin Randall
Tel: 215-553-2915
Fax: 215-553-4899
Royal Bank of Canada $190,000,000
Grand Cayman (North America No. 1)
Branch
c/o New York Branch
One Financial Square
23rd Floor
New York, NY 10005-3531
Attention: Manager, Credit
Administration; with a copy to
Donald Callancie
Tel: 212-428-6311
Fax: 212-428-2372
-3-<PAGE>
NAMES/ADDRESS COMMITMENT
---------------------------- ---------------------------------
Bank of Montreal $100,000,000
115 South LaSalle Street
Chicago, IL 60603
Attention: Randall Becker
Tel: 312-750-3723
Fax: 312-750-4314
Barnett Bank N.A. - Jacksonville $100,000,000
50 North Laura Street
24th Floor / 001002436
Jacksonville, FL 32231
Attention: Cindy Stover
Tel: 904-791-7419
Fax: 904-791-5645
Corestates Bank, N.A. $100,000,000
1339 Chestnut Street
FC: 1-8-11-24
Philadelphia, PA 19107
Attention: Beverly J. Coller
Tel: 215-973-3571
Fax: 215-786-7704
Caisse Nationale de Credit Agricole $100,000,000
520 Madison Avenue
New York, NY 10022
Attention: Craig Welch
Tel: 212-418-7087
Fax: 212-418-2228
Deutsche Bank A.G., New York and/or $100,000,000
Cayman Islands Branches
31 West 52nd Street
New York, NY 10019
Attention: Stephen Wiedemann
Tel: 212-474-8663
Fax: 212-474-8212
-4-<PAGE>
NAMES/ADDRESS COMMITMENT
---------------------------- ---------------------------------
The Dai-Ichi Kangyo Bank, Ltd., $100,000,000
New York Branch
One World Trade Center
48th Floor
New York, NY 10048
Attention: David J. McCann
Tel: 212-432-8882
Fax: 212-912-1879
Fleet National Bank $100,000,000
MAOF0305
1 Federal Street
Boston, MA 02211
Attention: Frank Benesh or
Derek Upson
Tel: 617-346-0617 or 617-346-0332
Fax: 617-246-0568
The Mitsubishi Trust and Banking $100,000,000
Corporation
520 Madison Avenue
26th Floor
New York, NY 10022
Attention: Bea Kossodo
Tel: 212-891-8363
Fax: 212-644-6825
The Mitsui Trust and Banking Company, $100,000,000
Limited, New York Branch
One World Financial Center
200 Liberty Street
21st Floor
New York, NY 10281
Attention: Shigeru Tsujimoto
Tel: 212-341-0370
Fax: 212-945-4170
National Australia Bank Limited $100,000,000
200 Park Avenue
34th Floor
New York, NY 10166
Attention: Shaun Dooley
Tel: 212-916-9621
Fax: 212-983-1969
-5-<PAGE>
NAMES/ADDRESS COMMITMENT
---------------------------- ---------------------------------
The Norinchukin Bank New York Branch $100,000,000
245 Park Avenue
29th Floor
New York, NY 10167
Attention: Maizie Tang
Tel: 212-949-7188
Fax: 212-697-5754
The Northern Trust Company $100,000,000
50 South LaSalle Street
Floor B-9
Chicago, IL 60675
Attention: Eric Strickland
Tel: 312-444-5602
Fax: 312-444-3508
The Sakura Bank, Limited $100,000,000
277 Park Avenue
45th Floor
New York, NY 10172
Attention: Ken Oshima
Tel: 212-756-6767
Fax: 212-888-7651
The Sanwa Bank, Limited $100,000,000
55 East 52nd Street
26th Floor
New York, NY 10055
Attention: Christian Kambour
Tel: 212-339-6232
Fax: 212-754-1304
Standard Chartered Bank $100,000,000
707 Wilshire Boulevard
Los Angeles, CA 90017
Attention: Qustandi Shiber
Tel: 213-614-5037
Fax: 213-614-2159
-6-<PAGE>
NAMES/ADDRESS COMMITMENT
---------------------------- ---------------------------------
The Yasuda Trust & Banking Co., Ltd. $100,000,000
666 Fifth Avenue
Suite 801
New York, NY 10103
Attention: Rohn Laudenschlager
Tel: 212-373-5713
Fax: 212-373-5796
Crestar Bank $ 50,000,000
919 East Main Street
22nd Floor
Richmond, VA 23219
Attention: Keith Hubbard
Tel: 804-782-5356
Fax: 804-782-5413
--------------
Total: $4,800,000,000
==============
-7-<PAGE>
EXHIBIT A TO
CREDIT AGREEMENT
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as
of November __, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among CSX
Corporation (the "Borrower"), the Lenders parties thereto, Bank
of America National Trust and Savings Association and
NationsBank, N.A., as Co-Syndication Agents, The Bank of Nova
Scotia, as Documentation Agent, and The Chase Manhattan Bank,
as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the
"Assignor") and the Assignee identified on Schedule 1 hereto
(the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns
to the Assignee without recourse to the Assignor, and the
Assignee hereby irrevocably purchases and assumes from the
Assignor without recourse to the Assignor, as of the Effective
Date (as defined below), the interest described on Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's
rights and obligations under the credit facility made available
under the Credit Agreement (the "Assigned Facility") and in a
principal amount for the Assigned Facility as set forth on
Schedule 1 hereto.
2. The Assignor (a) makes no representation or war-
ranty and assumes no responsibility with respect to any state-
ments, warranties or representations made in or in connection
with the Credit Agreement or with respect to the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or docu-
ment furnished pursuant thereto or in connection therewith (the
"Loan Documents"), other than that the Assignor has not created
any adverse claim upon the interest being assigned by it here-
under and that such interest is free and clear of any such
adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condi-
tion of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any
of its Subsidiaries or any other obligor of any of their
respective obligations under the Credit Agreement, the Loan
Documents or any other instrument or document furnished pursu-
ant hereto or thereto; and (c) attaches any Notes held by it
evidencing the Assigned Facility and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange
the attached Notes for a new Note or Notes payable to the
Assignee and (ii) if the Assignor has retained any interest in
the Assigned Facility, requests that the Administrative Agent
exchange the attached Notes for a new Note or Notes payable to
the Assignor, in each case in amounts which reflect the assign-
ment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).<PAGE>
3. The Assignee (a) represents and warrants that it
is legally authorized to enter into this Assignment and Accep-
tance; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements
delivered pursuant to Sections 3.04 and 5.01 thereof and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, indepen-
dently and without reliance upon the Assignor, the Administra-
tive Agent or any other Lender 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, the other Loan Documents or any
other instrument or document furnished pursuant hereto or
thereto; (d) represents that it has not relied upon the Unre-
stricted Margin Stock in its credit analysis or its decision to
enter into this Assignment and Acceptance; (e) appoints and
authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental
thereto; and (f) agrees that it will be bound by the provisions
of the Credit Agreement and will perform in accordance with its
terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender
including, if it is organized under the laws of a jurisdiction
outside the United States, its obligation pursuant to Section
2.16(e) of the Credit Agreement.
4. The effective date of this Assignment and Accep-
tance shall be the Effective Date of Assignment described on
Schedule 1 hereto (the "Effective Date"). Following the execu-
tion of this Assignment and Acceptance, it will be delivered to
the Administrative Agent for acceptance and recording by it
pursuant to the Credit Agreement, effective as of the Effective
Date (which shall not, unless otherwise agreed to by the Admin-
istrative Agent, be earlier than five Business Days after the
date of such acceptance and recording by the Administrative
Agent).
5. Upon such acceptance and recording, from and
after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the
Assignor for amounts which have accrued to and including the
Effective Date and to the Assignee for amounts which have
accrued subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by
the Administrative Agent for periods prior to the Effective
Date or with respect to the making of this assignment directly
between themselves.
6. From and after the Effective Date, (a) 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 Lender thereunder and under the
other Loan Documents and shall be bound by the provisions
thereof and (b) 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.
7. This Assignment and Acceptance shall be governed
by and construed in accordance with the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused
this Assignment and Acceptance to be executed as of the date
first above written by their respective duly authorized offic-
ers on Schedule 1 hereto.
-2-<PAGE>
Schedule 1
to Assignment and Acceptance
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal Commitment
Facility Assigned Amount Assigned Percentage Assigned1
----------------- --------------- --------------------
Revolving Credit
and Competitive
Advance Facility $ . %
[Competitive Loans $ N/A]
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By:_________________________ By:__________________________
Title: Title:
Accepted [and Consented to]: [Consented To:
THE CHASE MANHATTAN BANK, CSX CORPORATION
as Administrative Agent
By:_________________________ By:__________________________
Title: Title:]
[Consented to:
[ISSUING BANKS]
By:_________________________
Title:]
_____________________
1 Calculate the Commitment Percentage that is assigned to at
least 15 decimal places and show as a percentage of the aggregate
Commitments of all Lenders.<PAGE>
EXHIBIT B-1 TO
CREDIT AGREEMENT
[FORM OF REVOLVING LOAN NOTE]
REVOLVING LOAN NOTE
$______________ New York, New York
November __, 1996
FOR VALUE RECEIVED, the undersigned, CSX CORPORATION,
a Virginia corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of ________________ (the "Lender")
at the office of The Chase Manhattan Bank, located at 270 Park
Avenue, New York, New York 10017, in lawful money of the United
States of America and in immediately available funds, on the
Maturity Date the principal amount of (a) _______________
DOLLARS ($____________), or, if less, (b) the aggregate unpaid
principal amount of all Revolving Loans of the Lender made to
the Borrower pursuant to Section 2.01 of the Credit Agreement
(as defined below). The Borrower further agrees to pay inter-
est in like money at such office on the unpaid principal amount
hereof from time to time outstanding at the rates and on the
dates specified in Sections 2.12 and 2.17 of the Credit Agree-
ment.
The holder of this Revolving Loan Note is authorized
to endorse on the schedules annexed hereto and made a part
hereof or on a continuation thereof which shall be attached
hereto and made a part hereof the date, amount and Type of each
Revolving Loan made pursuant to the Credit Agreement and the
date and amount of each payment or prepayment of principal
thereof, each continuation thereof as the same Type, each con-
version of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period
and the Adjusted LIBO Rate with respect thereto. Each such
endorsement shall constitute prima facie evidence of the accu-
racy of the information endorsed. The failure to make any such
endorsement (or any error therein) shall not affect the obliga-
tions of the Borrower in respect of any Revolving Loan.
This Revolving Loan Note (a) is one of the Revolving
Loan Notes referred to in Section 2.09 of the Credit Agreement,
dated as of November __, 1996 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Lender, the other Lenders from time to
time parties thereto, Bank of America National Trust and Sav-
ings Association and NationsBank, N.A., as Co-Syndication
Agents, The Bank of Nova Scotia, as Documentation Agent, and
The Chase Manhattan Bank, as Administrative Agent, (b) is
subject to the provisions of the Credit Agreement and (c) is
subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events
of Default, all amounts then remaining unpaid on this Revolving
Loan Note shall become, or may be declared to be, immediately
due and payable, all as provided in the Credit Agreement.<PAGE>
All parties now and hereafter liable with respect to
this Revolving Loan Note, whether maker, principal, surety,
guarantor, endorser or otherwise, hereby waive presentment,
demand, protest and all other notices of any kind, except for
notices required under the Credit Agreement.
Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
THIS REVOLVING LOAN NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
CSX CORPORATION
By: _______________________
Name:
Title:
-2-<PAGE>
Schedule A to
Revolving Loan Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
-----------------------------------------------------------------------------
| | | | | Amount | | |
| | | | | of ABR | | |
| | | | Amount | Loans Con- | Unpaid | |
| | | | of Prin- | verted to | Principal | |
| | | Amount | cipal of | Eurodollar | Balance | |
| | Amount of |Converted to | ABR Loans | Revolving | of ABR |Notation |
|Date| ABR Loans | ABR Loans | Repaid | Loans | Loans | Made by |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|
| | | | | | | |
| | | | | | | |
|-----------------------------------------------------------------------------|<PAGE>
Schedule B to
Revolving Loan Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF
EURODOLLAR LOANS
------------------------------------------------------------------------------
| | | | Interest | Amount | | Unpaid | |
| | | Amount | Period | of | Amount | Principal| |
| | Amount| Con- | and Adjust-| Principal| of | Balance | |
| | of | verted | ed LIBO | of |Eurodollar| of | |
| | Euro-| to Euro-| Rate with |Eurodollar|Loans Con-| Euro- | |
| | dollar| dollar | Respect | Loans | verted to| dollar |Notation |
|Date| Loans| Loans | Thereto | Repaid | ABR Loans| Loans | Made by |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
| | | | | | | | |
| | | | | | | | |
|------------------------------------------------------------------------------|
<PAGE>
EXHIBIT B-2 TO
CREDIT AGREEMENT
[FORM OF COMPETITIVE LOAN NOTE]
COMPETITIVE LOAN NOTE
$_______________ New York, New York
November __, 1996
FOR VALUE RECEIVED, the undersigned, CSX CORPORATION,
a Virginia corporation (the "Borrower"), hereby unconditionally
promises to pay to the order of ________________ (the "Lender")
at the office of The Chase Manhattan Bank, located at 270 Park
Avenue, New York, New York 10017, in lawful money of the United
States of America and in immediately available funds, the
principal amount of (a) _____________ _______ DOLLARS
($_____________), or, if less, (b) the aggregate unpaid
principal amount of each Competitive Loan of the Lender made to
the Borrower pursuant to Section 2.04 of the Credit Agreement
(as defined below). The principal amount of each Competitive
Loan evidenced hereby shall be payable on the last day of the
Interest Period with respect thereto. The Borrower further
agrees to pay interest in like money at such office on the
unpaid principal amount of each Competitive Loan evidenced
hereby at the rates and on the dates specified in Sections 2.12
and 2.17 of the Credit Agreement. Competitive Loans evidenced
by this Competitive Loan Note may not be prepaid without the
prior written consent of the Lender thereof.
The holder of this Competitive Loan Note is
authorized to endorse on the schedule annexed hereto and made a
part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, amount,
interest rate, interest payment dates and Interest Period in
respect of each Competitive Loan made pursuant to Section 2.04
of the Credit Agreement and each payment of principal with
respect thereto. Each such endorsement shall constitute prima
facie evidence of the accuracy of the information endorsed.
The failure to make any such endorsement (or any error therein)
shall not affect the obligations of the Borrower in respect of
any Competitive Loan.
This Competitive Loan Note is one of the Competitive
Loan Notes referred to in Section 2.09 of the Credit Agreement,
dated as of November __, 1996 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Lender, the other Lenders from time to
time parties thereto, Bank of America National Trust and
Savings Association and NationsBank, N.A., as Co-Syndication
Agents, The Bank of Nova Scotia, as Documentation Agent, and
The Chase Manhattan Bank, as Administrative Agent, and is
subject to the provisions of the Credit Agreement.
Upon the occurrence of any one or more of the Events
of Default, all amounts then remaining unpaid on this
Competitive Loan Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit
Agreement.<PAGE>
All parties now and hereafter liable with respect to
this Competitive Loan Note, whether maker, principal, surety,
guarantor, endorser or otherwise, hereby waive presentment,
demand, protest and all other notices of any kind, except for
notices required under the Credit Agreement.
Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
THIS COMPETITIVE LOAN NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
CSX CORPORATION
By: ______________________
Name:
Title:
-2-<PAGE>
Schedule to
Competitive Loan Note
SCHEDULE OF COMPETITIVE LOANS
______________________ as Lender
CSX Corporation as Borrower
Credit Agreement dated as of November __, 1996
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| Date | Amount | | Interest | | | |
| of | of | Interest | Payment | Interest | Principal | Notation |
| Loan | Loan | Rate | Dates | Period | Payment | Made by |
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