SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-1
(Amendment No. 48 - Final Amendment)
Tender Offer Statement Pursuant to Section 14(d)(1)
of the Securities Exchange Act of 1934
and
SCHEDULE 13D
(Amendment No. 1)
Conrail Inc.
(Name of Subject Company)
Norfolk Southern Corporation
Atlantic Acquisition Corporation
(Bidders)
Common Stock, par value $1.00 per share
(Including the associated Common Stock Purchase Rights)
(Title of Class of Securities)
208368 10 0
(CUSIP Number of Class of Securities)
Series A ESOP Convertible Junior
Preferred Stock, without par value
(Including the associated Common Stock Purchase Rights)
(Title of Class of Securities)
Not Available
(CUSIP Number of Class of Securities)
James C. Bishop, Jr.
Executive Vice President-Law
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510-2191
Telephone: (757) 629-2750
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
with a copy to:
Randall H. Doud, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Telephone: (212) 735-3000
This Amendment No. 48 amends the Tender Offer Statement on Schedule
14D-1 filed on October 24, 1996, as amended (the "Schedule 14D-1"), by
Norfolk Southern Corporation, a Virginia corporation ("Parent"), and its
wholly owned subsidiary, Atlantic Acquisition Corporation, a Pennsylvania
corporation ("Purchaser"), relating to Purchaser's offer to purchase up
to an aggregate of 8,200,000 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 (the "ESOP Preferred Shares"
and, together with the Common Shares, the "Shares"), of Conrail Inc. (the
"Company"), including, in each case, the associated Common Stock Purchase
Rights, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated October 24, 1996 (the "Offer to Purchase"), as
amended and supplemented by the Supplement to the Offer to Purchase,
dated November 8, 1996 (the "First Supplement"), the Second Supplement to
the Offer to Purchase, dated December 20, 1996 (the "Second Supplement"),
the Third Supplement to the Offer to Purchase, dated January 22, 1997
(the "Third Supplement") and in the revised Letter of Transmittal (which,
together with any amendments or supplements thereto, constitute the
"Offer"). Unless otherwise defined herein, all capitalized terms used
herein shall have the respective meanings given such terms in the Offer
to Purchase, the First Supplement, the Second Supplement, the Third
Supplement or the Schedule 14D-1.
Item 4. Source and Amount of Funds or Other Consideration.
Item 4 is hereby amended and supplemented by the following:
(a) - (b) As of February 10, 1997, Parent entered into a Credit
Agreement with Morgan Guaranty Trust Company of New York, as
administrative agent (the "Administrative Agent"), Merrill Lynch Capital
Corporation, as documentation agent, and certain financial institutions,
under which the Lenders agreed to provide Parent with the Credit Facility
providing an aggregate principal amount not to exceed $13 billion in
loans to finance the Offer, the Second Offer and the Proposed Merger, to
pay related fees and expenses, to refinance Parent's and the Company's
existing debt and for working capital purposes.
To finance payment of the Offer, on February 10, 1997, Parent
issued and sold $1.0 billion in commercial paper, supported by the Credit
Agreement.
Parent's commercial paper program involves the private placement of
unsecured, commercial paper notes with varying maturities of up to 270
days. The commercial paper issuances generally have an effective interest
rate approximating the then market rate of interest for commercial paper
of similar rating. Currently the weighted average interest rate for
commercial paper outstanding is approximately 5.4%. Parent may refinance
any commercial paper borrowings used to finance the purchase of Shares
pursuant to the Offer through private placements of additional commercial
paper, borrowings under the Credit Facility or, depending on market or
business conditions and subject to certain restrictions on the incurrence
of indebtedness set forth in the Credit Agreement, through such other
financing as Parent may deem appropriate.
The Credit Facility consists of four facilities. Three of these
facilities are term loan facilities. One term loan has a principal amount
of $3.5 billion, $1 billion of which will be repayable on the first
anniversary of the Acquisition Date and the remainder of which will be
repayable on the date (the "Final Term Loan I Maturity Date") which is
the earlier of (i) six months from the date on which the STB issues its
final order with respect to the acquisition of control of the Company by
Parent and (ii) or February 10, 2000, the third anniversary of the date
of the execution and delivery of the Credit Agreement (the "Closing
Date"). The second term loan facility has a principal amount of $3.5
billion repayable 24 months after the Final Term Loan I Maturity Date.
The third term loan facility has a principal amount of $3 billion
repayable in unequal quarterly installments during the period from and
including March 31, 1997 (subject to extension under certain
circumstances) through and including June 30, 2003. Each of the term
loans will bear interest at a rate per annum equal to, at the option of
Parent and Purchaser, either (i) the Eurodollar rate plus a margin (A) of
0.1% in the case of loans outstanding under the Credit Facility prior to
the date on which the Borrower owns at least 51% of the Shares (the
"Acquisition Date") and (B) between .875% and .225% depending upon
Parent's senior unsecured long-term debt ratings in the case of loans
outstanding under the Credit Facility after the Acquisition Date, (ii) an
adjusted CD rate plus a margin of (A) 0.225% in the case of loans
outstanding under the Credit Facility prior to the Acquisition Date and
(B) between 0.350% and 1.00% depending upon Parent's senior unsecured
long-term debt ratings and (iii) the higher of Morgan's prime rate or the
federal funds rate plus .50% (the "Base Rate") plus a margin of (A) 0% in
the case of loans outstanding prior to the Acquisition Date and (B) 0.25%
depending upon Parent's senior unsecured long-term debt ratings in the
case of loans outstanding under the Credit Facility after the Acquisition
Date (such rates together with the applicable margins, the "Variable
Rate"). The fourth facility is a revolving credit facility of $3 billion,
which will bear interest at the Variable Rate or a money market rate, and
will mature five years after the Closing Date. The Credit Facility also
provides for a facility fee accruing on the total amount available or
outstanding thereunder at a rate which will initially be .25% per annum
and may be adjusted depending upon Parent's senior unsecured long-term
debt ratings to between .125% and .375% per annum. In addition, during
all times that both Parent's senior unsecured long-term debt and the
loans under the Credit Facility have ratings below investment grade, such
loans will bear interest at a rate per annum equal to the rates described
above that would otherwise be applicable to such loans plus an additional
margin of .125%.
The Credit Agreement also contains certain financial covenants as
well as certain restrictions on, among other things, (i) maturities or
amortization of indebtedness prior to six months after the final maturity
of the loans under the Credit Facility, (ii) indebtedness of
subsidiaries, (iii) liens, (iv) mergers, consolidations, liquidations,
dissolutions and sales of assets, (v) transactions with affiliates, and
(vi) the ability of subsidiaries to pay dividends. The financial
covenants require Parent to maintain specified (i) minimum interest
coverage ratios, (ii) minimum consolidated net worth, and (iii) maximum
leverage ratios. The covenants also restrict payments, transfers or other
distributions from Parent to the Company prior to the later of the
consummation of the Proposed Merger or the date on which the approval of
the STB shall have been obtained.
The Credit Agreement contains certain representations and
warranties regarding, among other things, corporate existence, power and
authority, enforceability of the Credit Agreement and other loan
documents, no conflicts, financial information, absence of material
adverse change, absence of material litigation, compliance with certain
laws and regulations, certain environmental matters, taxes, matters
related to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and absence of material misstatements. In addition,
the Credit Agreement contains certain covenants regarding, among other
things, maintenance of corporate existence, maintenance of the business,
maintenance of insurance, payment of taxes, delivery of financial
statements and reports, compliance with laws and use of proceeds.
Events of Default (as defined in the Credit Agreement) include,
subject (in certain instances) to customary notice and cure periods,
material breaches of representations or warranties, failure to pay
principal or interest, breach of covenants, cross default to certain
other debt, material judgments, bankruptcy, failures to make payments
required to be made under ERISA, the acquisition of a 30% beneficial
interest in the common stock of Parent by any person or group of persons
(within the meaning of Section 13 or 14 of the Exchange Act) and,
commencing after the Acquisition Date, quarterly dividends received by
Parent in respect to Company stock being less than $0.40375 per share in
any calendar quarter. Upon the occurrence of an Event of Default, the
Lenders with a majority of the Exposures (as defined in the Credit
Agreement) can cause the Administrative Agent to terminate the
commitments and declare all outstanding loans immediately due and
payable. If a bankruptcy Event of Default occurs, the commitments will
terminate automatically and the loans will become due and payable
immediately without any action by the Administrative Agent or the
Lenders.
As security for Parent's obligations under the Credit Agreement,
including payment of principal and interest on loans outstanding under
the Credit Facility, Parent has granted the Administrative Agent (on
behalf of the Lenders) pledges over (i) all of the stock held by Parent
in certain significant subsidiaries (as that term is defined in the
Credit Agreement) of Parent (the "Significant Subsidiaries"), (ii) all
debt owing by the Significant Subsidiaries to Parent and (iii) Parent's
interests in the Voting Trust. In addition, each Significant Subsidiary
has (i) granted the Administrative Agent (on behalf of the Lenders)
pledges over its stock in, and debt owed to it by, other Significant
Subsidiaries and (ii) guaranteed Parent's performance of its obligations
under the Credit Agreement, including the payment of principal and
interest on loans outstanding under the Credit Facility.
In connection with the Credit Agreement, Parent has agreed to pay
the Arrangers and the Lenders certain fees, to reimburse the Arrangers
and the Lenders for certain expenses and to provide certain indemnities,
as is customary for commitments of the type described herein.
A copy of the Credit Agreement is filed as an exhibit hereto and is
incorporated herein by reference.
Item 5. Purpose of the Tender Offer and Plans or Proposals of the Bidder.
On February 10, 1997, Parent notified the Company, pursuant to the
requirements of the Company's Amended and Restated By-Laws (the "Company
By-Laws"), of its intention at the Company's 1997 Annual Meeting of
Shareholders to (i) nominate George A. Butler, Stephen P. Lamb, Mary
Patterson McPherson, Bernard C. Watson and J. Roger Williams, Jr. for
election as directors of the Company, (ii) introduce a proposal to amend
Section 3.01 of the Company By-Laws to declassify the Company Board,
(iii) introduce a proposal which would effect the removal of all of the
directors of the Company from the Company Board, other than the individ-
uals nominated to the Company Board by Parent and Daniel B. Burke, David
B. Lewis and John C. Marous, and (iv) introduce a proposal to amend
Section 3.01 of the Company By-Laws to decrease the size of the Company
Board to a total of eight directors. A copy of the notice is filed as an
exhibit hereto and is incorporated herein by reference.
Item 6. Interest in Securities of the Subject Company.
Item 6 is hereby amended and supplemented by the following:
(a) - (b) On February 10, 1997, Parent issued a press release
announcing that the final proration factor in the Offer was 12.611251%
and that payment for Shares in the Offer would commence on February 11,
1997. A copy of the press release is filed as an exhibit hereto and is
incorporated herein by reference.
Item 10. Additional Information.
Item 10 is hereby amended and supplemented by the following:
(b) On February 10, 1997, the Voting Trust Agreement was executed
and delivered, and First American National Bank was appointed as the
Trustee thereunder. A copy of the Voting Trust Agreement is filed as an
exhibit hereto.
Item 11. Material to be Filed as Exhibits.
Item 11 is hereby amended and supplemented by the following:
(a)(111) Press Release issued by Parent on February 10, 1997.
(b)(3) Credit Agreement, dated as of February 10, 1997, by and
among Parent, Morgan Guaranty Trust Company of Norfolk,
as administrative agent, Merrill Lynch Capital
Corporation, as documentation agent, and the banks from
time to time parties thereto.
(c)(2) Voting Trust Agreement, dated as of February 10, 1997,
by and among Parent, Purchaser and First American
National Bank.
(c)(3) Notice, dated February 10, 1997, delivered by Parent to
the Company regarding Parent's intention to nominate
directors to the Company Board and to conduct certain
other business at the Company's 1997 Annual Meeting of
Shareholders.
SIGNATURE
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: February 11, 1997
NORFOLK SOUTHERN CORPORATION
By: /s/ JAMES C. BISHOP, JR.
Name: James C. Bishop, Jr.
Title: Executive Vice President-Law
ATLANTIC ACQUISITION CORPORATION
By: /s/ JAMES C. BISHOP, JR.
Name: James C. Bishop, Jr.
Title: Vice President and General
Counsel
EXHIBIT INDEX
Exhibit
Number Description
(a)(111) Press Release issued by Parent on February 10, 1997.
(b)(3) Credit Agreement, dated as of February 10, 1997, by and among
Parent, Morgan Guaranty Trust Company of Norfolk, as
administrative agent, Merrill Lynch Capital Corporation, as
documentation agent, and the banks from time to time parties
thereto.
(c)(2) Voting Trust Agreement, dated as of February 10, 1997, by and
among Parent, Purchaser and First American National Bank.
(c)(3) Notice, dated February 10, 1997, delivered by Parent to the
Company regarding Parent's intention to nominate directors to
the Company Board and to conduct certain other business at
the Company's 1997 Annual Meeting of Shareholders.
FOR IMMEDIATE RELEASE
February 10, 1997
Media Contact: Robert Fort
(757) 629-2710 or (757) 646-0590
Norfolk Southern Announces Nomination of Five Directors for Conrail Board
NORFOLK, VA -- Norfolk Southern Corporation (NYSE: NSC) announced today
that it has nominated a slate of five directors to serve on the board of
Conrail Inc. and said it would also seek to remove all but three current
members of the Conrail board.
In addition, Norfolk Southern said it proposed reducing the size of
Conrail's board of directors from thirteen to eight and "declassifying"
the board, which would change the current system of electing Conrail
directors on a staggered basis and instead require that they all be
elected annually by the shareholders.
The proposals, which were delivered to Conrail today, are to be
considered at the annual meeting of Conrail shareholders. Conrail has
scheduled the annual meeting -- usually held in April or May -- for
December 19, 1997.
Atlantic Investment Company, the wholly owned Norfolk Southern
subsidiary that submitted the proposals, said it is seeking to replace
most of the Conrail board with directors who are committed to evaluating
fairly and impartially all acquisition proposals for Conrail and to
seeking the most advantageous transaction for Conrail shareholders.
The nominees include:
oo George A. Butler, retired president of CoreStates
Financial Corp. in Philadelphia.
oo Stephen P. Lamb, a partner in the Wilmington, Del.,
law firm of Lamb & Bouchard.
oo Mary Patterson McPherson, the president of Bryn Mawr
College in Bryn Mawr, Pa., who will join the Andrew W. Mellon
Foundation in New York later in the year.
oo Bernard C. Watson, chairman of the HMA Foundation in
Philadelphia and former president and chief executive
officer of the William Penn Foundation in Philadelphia.
oo J. Roger Williams, Jr., of counsel to the Philadelphia law
firm of Dilworth, Paxson, Kalish & Kauffman.
Norfolk Southern said it would seek to remove all current Conrail
directors except for Daniel B. Burke, David B. Lewis and John C. Marous.
David R. Goode, Chairman, President and Chief Executive Officer of
Norfolk Southern, said that Norfolk Southern was forced to submit the
shareholder initiative today after Conrail announced that it was delaying
the annual shareholders meeting. By delaying the meeting to late
December, Conrail triggered a provision of its by-laws requiring
shareholders to submit nominations and proposals within ten days.
"We would have preferred waiting to submit these proposals,
especially now that both CSX and Conrail have agreed to meet and discuss
the issues facing us," Goode said. "However, Conrail's recent action to
delay the shareholders' meeting as long as possible imposed a very short
deadline on its own shareholders and we had to act to protect shareholder
interests."
Goode said that "a Norfolk Southern acquisition of Conrail is the
best opportunity for achieving balanced competition." And he emphasized
that "Conrail shareholders must get $115 in cash for each of their
shares."
Norfolk Southern also announced that on Tuesday it will commence
payment for the 8.2 million shares of Conrail which were accepted for
payment upon expiration of Norfolk Southern's 9.9 percent tender offer.
The offer was oversubscribed with more than 90 percent of the Conrail
shares held by shareholders other than CSX being tendered. The final
proration factor is approximately 12.6 percent for all Conrail shares
tendered.
Norfolk Southern intends to promptly commence a second $115
per-share all-cash tender offer for all of the remaining Conrail shares.
Conrail shareholders on January 17 overwhelmingly defeated Conrail
management's proposal to "opt out" of the Pennsylvania Fair Value
Statute, clearly signaling their preference for Norfolk Southern's
all-cash offer of $115 per share.
Norfolk Southern is a Virginia-based holding company with
headquarters in Norfolk, Va. It owns a major freight railroad, Norfolk
Southern Railway Company, which operates about 14,400 miles of road in 20
states, primarily in the Southeast and Midwest, and the Province of
Ontario, Canada. The corporation also owns North American Van Lines,
Inc., and Pocahontas Land Corporation, a natural resources company.
###
World Wide Web Site - http://www.nscorp.com
[EXECUTION COPY]
$13,000,000,000
CREDIT AGREEMENT
dated as of
February 10, 1997
among
Norfolk Southern Corporation,
The Banks From Time to Time Parties Hereto,
Morgan Guaranty Trust Company of New York,
as Administrative Agent
and
Merrill Lynch Capital Corporation,
as Documentation Agent
J.P. Morgan Securities Inc.
and
Merrill Lynch & Co.,
Arrangers
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITION
Section 1.1. Definitions.......................... 1
Section 1.2. Accounting Terms and Determinations.. 20
Section 1.3. Classes and Types of Loans and
Borrowings........................... 21
ARTICLE 2
THE CREDIT
Section 2.1. Commitments to Lend.................. 21
Section 2.2. Notice of Committed Borrowings....... 22
Section 2.3. Money Market Borrowings.............. 22
Section 2.4. Notice to Banks; Funding of Loans.... 25
Section 2.5. Maturity of Loans.................... 26
Section 2.6. Interest Rates....................... 28
Section 2.7. Regulation D Compensation............ 30
Section 2.8. Facility Fees........................ 30
Section 2.9. Optional Termination or Reduction of
Commitments.......................... 31
Section 2.10. Method of Electing Interest Rates... 31
Section 2.11. Optional Prepayments................ 32
Section 2.12. Mandatory Reduction and Termination
of Commitments; Mandatory
Prepayments......................... 31
Section 2.13. General Provisions as to Payments... 34
Section 2.14. Funding Losses...................... 35
Section 2.15. Computation of Interest and Fees.... 35
Section 2.16. Registry............................ 35
ARTICLE 3
CONDITIONS TO BORROWING
Section 3.1. First Borrowing Date................. 36
Section 3.2. Acquisition Date..................... 37
Section 3.3. Merger Date.......................... 38
Section 3.4. Borrowings........................... 38
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 3.5. Waiver by Banks...................... 39
Section 4.1. Corporate Existence and Power........ 39
Section 4.2. Corporate and Governmental
Authorization; No Contravention...... 39
Section 4.3. Binding Effect....................... 40
Section 4.4. Financial Information................ 40
Section 4.5. Litigation........................... 40
Section 4.6. Compliance with Laws................. 41
Section 4.7. Environmental Matters................ 41
Section 4.8. Taxes................................ 41
Section 4.9. Significant Subsidiaries............. 42
Section 4.10. Not an Investment Company or a
Holding Company..................... 42
Section 4.11. Full Disclosure..................... 42
Section 4.12. Representations in Other Loan
Documents True and Correct.......... 43
Section 4.13. Ownership of Property, Liens........ 43
Section 4.14. No Default.......................... 43
ARTICLE 5
COVENANTS
Section 5.1. Information.......................... 43
Section 5.2. Maintenance of Property; Insurance... 46
Section 5.3. Conduct of Business and Maintenance
of Existence......................... 47
Section 5.4. Compliance with Laws................. 47
Section 5.5. Payment of Obligations............... 47
Section 5.6. Inspection of Property, Books and
Records.............................. 47
Section 5.7. Financial Covenants.................. 48
Section 5.8. Negative Pledge...................... 49
Section 5.9. Consolidations, Mergers and Sales of
Assets............................... 50
Section 5.10. Use of Proceeds..................... 52
Section 5.11. Limitation on Debt.................. 52
Section 5.12. Transactions with Affiliates........ 53
Section 5.13. No Modification of the Voting Trust
Agreement Without Bank Consent...... 53
Section 5.14. Limitation on Restrictions Affecting
Subsidiaries........................ 53
Section 5.15. Fiscal Year......................... 54
Section 5.16. Hedging Facilities.................. 54
Section 5.17. Restricted Investments.............. 54
Section 5.18. Consummation........................ 54
Section 5.19. Additional Guarantors............... 54
ARTICLE 6
DEFAULT
Section 6.1. Events of Default.................... 54
Section 6.2. Notice of Default.................... 57
ARTICLE 7
THE AGENT
Section 7.1. Appointment and Authorization........ 57
Section 7.2. Agents and Affiliates................ 57
Section 7.3. Action by Administrative Agent....... 57
Section 7.4. Consultation with Experts............ 57
Section 7.5. Liability of Agents.................. 57
Section 7.6. Indemnification...................... 58
Section 7.7. Credit Decision...................... 58
Section 7.8. Successor Agent...................... 58
Section 7.9. Agents' Fees......................... 59
ARTICLE 8
CHANGE IN CIRCUMSTANCE
Section 8.1. Basis for Determining Interest Rate
Inadequate or Unfair................. 59
Section 8.2. Illegality........................... 59
Section 8.3. Increased Cost and Reduced Return.... 60
Section 8.4. Taxes................................ 61
Section 8.5. Base Rate Loans Substituted for
Affected Fixed Rate.................. 64
Section 8.6. Substitution of Bank................. 64
ARTICLE 9
MISCELLANEOUS
Section 9.1. Notices.............................. 65
Section 9.2. No Waivers........................... 65
Section 9.3. Expenses; Indemnification............ 65
Section 9.4. Sharing of Set-Offs.................. 66
Section 9.5. Amendments and Waivers............... 66
Section 9.6. Successors and Assigns............... 67
Section 9.7. Governing Law; Submission to
Jurisdiction, WAIVER OF JURY TRIAL... 68
Section 9.8. Counterparts; Integration;
Effectiveness........................ 68
Section 9.9. Confidentiality...................... 69
Section 9.10. Termination......................... 69
Section 9.11. Collateral.......................... 69
Section 9.12. Representations of Banks............ 69
Commitment Schedule
Pricing Schedule
Exhibit A-1 - Borrower Pledge Agreement
Exhibit A-2 - Subsidiary Pledge Agreement
Exhibit B - Subsidiary Guarantee Agreement
Exhibit C - Note
Exhibit D-1 - Opinion of Special Counsel for the Borrower
(First Borrowing Date)
Exhibit D-2 - Opinion of General Counsel of the Borrower
(First Borrowing Date)
Exhibit D-3 - Opinion of Special Counsel for the Borrower
(Acquisition Date)
Exhibit D-4 - Opinion of General Counsel of the Borrower
(Acquisition Date)
Exhibit D-5 - Opinion of Williams Kelly & Greer
Exhibit E - Opinion of Special Counsel for the Agents
Exhibit F - Assignment and Assumption Agreement
Exhibit G - Money Market Quote Request
Exhibit H - Invitation for Money Market Quotes
Exhibit I - Money Market Quote
CREDIT AGREEMENT
AGREEMENT dated as of February 10, 1997, among NORFOLK SOUTHERN
CORPORATION, the BANKS from time to time parties hereto, MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative Agent and MERRILL LYNCH CAPITAL
CORPORATION, as Documentation Agent.
The parties hereto agree as follows:
ARTICLE 1
Definition
Section 1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Acquisition" means the acquisition by the Borrower, directly
or indirectly (including without limitation through the Voting Trust), of
Conrail pursuant to the Second Offer and the Merger.
"Acquisition Date" means the date of the first Borrowing of the
Term Loans hereunder. The Acquisition Date may occur on or after the First
Borrowing Date.
"Absolute Rate Auction" means a solicitation of Money Market
Quotes setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.06(b).
"Administrative Agent" means Morgan Guaranty Trust Company of
New York in its capacity as Administrative Agent for the Banks under the Loan
Documents, and its successors in such capacity.
"Administrative Questionnaire" means, with respect to each
Bank, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent (with a copy to
the Borrower) duly completed by such Bank.
"Affiliate" means (i) any Person that directly, or indirectly
through one or more intermediaries, controls the Borrower (a "Controlling
Person") or (ii) any Person (other than the Borrower or a Subsidiary) which is
controlled by or is under common control with a Controlling Person. As used
herein, the term "control" means possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means the Administrative Agent or the Documentation
Agent, and "Agents" means both of them.
"Applicable Lending Office" means, with respect to any Bank,
(i) in the case of its Domestic Loans, its Domestic Lending Office, (ii) in
the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in
the case of its Money Market Loans, its Money Market Lending Office.
"Applicable Margin" means, with respect to Loans of any Type at
any time, the applicable percentage rate per annum set forth in the Pricing
Schedule with respect to Loans of such Type which is applicable at such time
in accordance with the Pricing Schedule; provided that (i) the Applicable
Margin on any date with respect to any Loan shall be the sum of the percentage
so determined in accordance with the Pricing Schedule plus 2.00%, if on such
date a Default exists under Section 6.01(a) with respect to such Loan and (ii)
the Applicable Margin on any date with respect to all Loans shall be the sum
of the percentage so determined in accordance with the Pricing Schedule plus
2.00%, if on such date an Event of Default exists under Section 6.01(a).
"Assessment Rate" has the meaning set forth in Section 2.06(b).
"Asset Sale" means any sale, lease or other disposition
(including any such transaction effected by way of merger or consolidation) by
the Borrower or any of its Subsidiaries of any asset (including without
limitation any capital stock held by the Borrower or such Subsidiary),
including without limitation any sale-leaseback transaction, whether or not
involving a capital lease, but excluding (i) dispositions to the Borrower or a
Consolidated Subsidiary of the Borrower, (ii) any sale, transfer or other
disposition of inventory or obsolete equipment in the ordinary course of
business, (iii) any sale, lease or other disposition (or series of related
sales, leases or other dispositions) the Net Cash Proceeds of which do not
exceed $40,000,000 on an individual basis, (iv)leases with respect to tangible
property entered into in the ordinary course of business, (v) any sale,
transfer or other disposition of temporary cash investments in the ordinary
course of business, (vi) any sale, transfer or other disposition of any assets
if the Borrower notifies the Administrative Agent promptly after the receipt
of the proceeds thereof that such proceeds will be committed by the Borrower
and its Subsidiaries to be used to purchase similar assets within three months
of the date of such notice and will be so used within twelve months of the
date of such notice, but only to the extent such proceeds are actually so
used, (vii) any sale, transfer or other disposition of any "margin stock"
(within the meaning of the Margin Regulations) for fair value, (viii) any
dispositions resulting in Major Property Insurance Proceeds and (ix) any
transfer to the Voting Trust of securities of Conrail or of a Subsidiary
intended to be merged with Conrail.
"Assignee" has the meaning set forth in Section 9.06(c).
"Bank" means each financial institution listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant to Section 9.06(c),
and their respective successors.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan which bears interest
at a rate per annum based upon the Base Rate pursuant to the applicable Notice
of Borrowing or Notice of Interest Rate Election or the provisions of Section
2.06(e) or Article 8.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by the
Borrower.
"Borrower" means Norfolk Southern Corporation, a Virginia
corporation, its successors, and any Person with which the Borrower merges or
consolidates, or to which it sells substantially all of its assets, in
accordance with Section 5.09.
"Borrower's 1995 Form 10-K" means the Borrower's annual report
on Form 10-K for 1995, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"Borrower Pledge Agreement" means the Pledge Agreement to be
entered into between the Borrower and the Administrative Agent for the benefit
of the Secured Parties named therein, in substantially the form of Exhibit
A-1, in respect of the Trust Certificates (as defined in the Voting Trust
Agreement), if any, held by the Borrower, the capital stock of any Significant
Subsidiary owned directly by the Borrower and certain Debt held by the
Borrower.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.06(b).
"CD Loan" means a Committed Loan which bears interest at a CD
Rate pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election.
"CD Rate" means a rate of interest determined pursuant to
Section 2.6(b) on the basis of an Adjusted CD Rate.
"CD Reference Banks" means The First Bank of Chicago, Wachovia
Bank of North Carolina and Morgan Guaranty Trust Company of New York.
"Class" has the meaning set forth in Section 1.03.
"Closing Date" means the date this Agreement becomes effective
in accordance with Section 9.08(b).
"Collateral" means the collateral purported to be subject to
the Liens of the Collateral Documents.
"Collateral Documents" means the Pledge Agreements, any
additional pledges required to be delivered pursuant to the Loan Documents and
any instruments of assignment or other instruments or agreements executed
pursuant to the foregoing.
"Commitment" means any Term Loan Commitment or Revolving Credit
Commitment, and "Commitments" means any or all of the foregoing, as the
context may require.
"Commitment Schedule" means the Schedule attached hereto and
identified as such.
"Committed Loan" means a loan made by a Bank pursuant to Section
2.01.
"Conrail" means Conrail Inc., a Pennsylvania corporation, and
its successors (including, without limitation, the survivor of the Merger,
whether or not Conrail, Inc.).
"Consolidated Capital Expenditures" means, for any period, the
expenditures for additions to property, plant and equipment and other capital
expenditures of the Borrower and its Consolidated Subsidiaries for such period,
as the same are or would be set forth in a consolidated statement of cash flows
of the Borrower and its Consolidated Subsidiaries for such period.
"Consolidated EBITDA" means, for any fiscal period,
Consolidated Net Income for such period plus, to the extent deducted in
determining such Consolidated Net Income for such period, the aggregate amount
of (i) Consolidated Interest Expense, (ii) consolidated income tax expense,
(iii) consolidated depreciation and amortization expense and (iv) special
charges, restructuring charges and charges taken in connection with unusual or
infrequent accounting adjustments and minus, to the extent reflected in
Consolidated Net Income, non-recurring items of gain (it being understood that
gains realized by the Borrower and its Consolidated Subsidiaries upon sales of
assets consistent with past practices are not non-recurring for this purpose).
On the basis set forth in the immediately preceding sentence, (x) Consolidated
EBITDA for the fiscal quarter ended June 30, 1996 was $731,000,000 and (y)
Consolidated EBITDA for the fiscal quarter ended September 30, 1996 was
$780,000,000.
"Consolidated Interest Expense" means, for any period, the
aggregate interest expense of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis for such period; provided that if any
determination of Consolidated Interest Expense is required to be made for any
period commencing prior to the Consummation Date, such determination shall be
made on a pro forma basis as if all Debt outstanding at the date of
determination had been outstanding since the first day of the relevant period.
On the basis set forth in the immediately preceding sentence, Consolidated
Interest Expense for the fiscal quarters ended June 30, 1996 and September 30,
1996, respectively, was $265,000,000.
"Consolidated Net Income" means, for any fiscal period, the net
income of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis for such period, exclusive, solely for purposes of the
definition of Consolidated EBITDA, of the effect of any extraordinary gain or
loss.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries as of
such date.
"Consolidated Subsidiary" means at any date with respect to any
Person , any Subsidiary or other entity the accounts of which would be
consolidated with those of such Person in its consolidated financial
statements if such statements were prepared as of such date. Unless otherwise
specified, a "Consolidated Subsidiary" shall be a Consolidated Subsidiary of
the Borrower; provided that, for purposes of Article 3 and Sections 4.04(c)
and 5.07 and related definitions as used for purposes thereof, on any date
prior to the Consummation Date, Conrail shall be deemed to be (and to have at
all times been) a wholly-owned Consolidated Subsidiary of the Borrower.
"Consummation Date" means the later of the Merger Date and the
STB Approval Date.
"Continuing Director" has the meaning set forth in Section
6.01(l).
"Debt" of any Person means at any date, without duplication,
(i) all indebtedness of such Person for borrowed money, (ii) all indebtedness
of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable arising in the
ordinary course of business, (iv) all obligations of such Person as lessee
which are capitalized in accordance with generally accepted accounting
principles, (v) any obligation (whether fixed or contingent) to reimburse any
bank or other Person in respect of amounts paid or payable under a standby
letter of credit, (vi) any capital stock of such Person which is redeemable
otherwise than at the sole option of such Person, (vii) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
assumed by such Person, and (viii) all Debt of others Guaranteed by such
Person.
"Derivatives Obligations" of any Person means all obligations
of such Person in respect of any rate swap transaction, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index
swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of the
foregoing transactions.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Documentation Agent" means Merrill Lynch Capital Corporation
in its capacity as Documentation Agent for the Banks hereunder.
"Domestic Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York City are authorized by law
to close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Administrative Agent;
provided that any Bank may so designate separate Domestic Lending Offices for
its Base Rate Loans, on the one hand, and its CD Loans, on the other hand, in
which case all references herein to the Domestic Lending Office of such Bank
shall be deemed to refer to either or both of such offices, as the context may
require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.06(b).
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment, to the effect of
the environment on human health or to emissions, discharges or releases of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the transport, manufacture, processing,
distribution, use, treatment, storage, disposal or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic
or hazardous substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Borrower, any Consolidated Subsidiary
and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together
with the Borrower or any Consolidated Subsidiary, are treated as a single
employer under Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Dollar Lending Office) or such other office, branch
or affiliate of such Bank as it may hereafter designate as its Euro-Dollar
Lending Office by notice to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan which bears interest
at a Euro-Dollar Rate pursuant to the applicable Notice of Borrowing or Notice
of Interest Rate Election.
"Euro-Dollar Rate" means a rate of interest determined pursuant
to Section 2.06(c) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London
offices of The First National Bank of Chicago, Wachovia Bank of North Carolina
and Morgan Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means the Credit Agreement dated as
of March 29, 1994, and amended and restated as of July 31, 1996, among the
Borrower, the banks parties thereto and Morgan Guaranty Trust Company of New
York, as agent for such banks.
"Exposure" means, at any time as to any Bank, the sum of (i)
such Bank's Term Loan Commitment(s), plus (ii) the outstanding principal
amount of such Bank's Term Loans plus (iii) such Bank's Revolving Credit
Commitment, if still in existence, or the outstanding principal amount of such
Bank's Revolving Credit Loans and Money Market Loans, if its Revolving Credit
Commitment is no longer in existence.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no such
rate is so published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to Morgan
Guaranty Trust Company of New York on such day on such transactions as
determined by the Administrative Agent.
"First Borrowing Date" means the date of the first Borrowing
hereunder. The First Borrowing Date may occur on or prior to the Acquisition
Date.
"First Offer" means the offer by the Offeror to purchase up to
9.9% of the outstanding shares of Common Stock and Series A ESOP Convertible
Junior Preferred Stock of Conrail at $115 net per share pursuant to the First
Offer to Purchase.
"First Offer to Purchase" means the Offer to Purchase dated
October 24, 1996 by the Offeror to the stockholders of Conrail, as
supplemented as of January 22, 1997, and as further amended from time to time
in accordance with its terms.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at the Base
Rate pursuant to Section 8.01(a)) or any combination of the foregoing.
"Group of Loans" means at any time a group of Loans of any Class
consisting of (i) all Loans of such Class which are Base Rate Loans at such
time or (ii) all Loans of such Class which are Euro-Dollar Loans or CD Loans
having the same Interest Period at such time, provided that, if a Loan of any
particular Bank is converted to or made as a Base Rate Loan pursuant to
Article 8, such Loan shall be included in the same Group or Groups of Loans
from time to time as it would have been in if it had not been so converted or
made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Indemnitee" has the meaning set forth in Section 9.3(b).
"Information Memorandum" means the Information Memorandum dated
October 28, 1996 furnished to the Banks in connection with this Agreement.
"Initial Conrail Investment" means the purchase by the
Borrower, directly or indirectly (including without limitation through the
Voting Trust), of up to (but not in excess of) 9.9% in the aggregate of the
outstanding shares of Common Stock and Series A ESOP Convertible Junior
Preferred Stock of Conrail pursuant to the First Offer.
"Interest Coverage Ratio" means, at any date, the ratio of (i)
Consolidated EBITDA less Net Consolidated Capital Expenditures to (ii)
Consolidated Interest Expense, in each case for the period of four consecutive
fiscal quarters most recently ended on or prior to such date.
"Interest Period" means: (1) with respect to each Euro-Dollar
Loan, the period commencing on the date of borrowing specified in the
applicable Notice of Borrowing or on the date specified in the applicable
Notice of Interest Rate Election and ending one, two, three or six months
thereafter, as the Borrower may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) and (d) below, end on the last
Euro-Dollar Business Day of a calendar month;
(c) no Interest Period for any Revolving Credit Loan shall extend
beyond the Revolving Credit Termination Date; and
(d) no Interest Period applicable to any Term Loan of any Class
shall extend beyond any date upon which is due any scheduled principal payment
in respect of the Term Loans of such Class unless the aggregate principal
amount of Term Loans of such Class represented by Base Rate Loans, or by Fixed
Rate Loans having Interest Periods that will expire on or before such date,
equals or exceeds the amount of such principal payment.
(2) with respect to each CD Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30,
60, 90 or 180 days thereafter, as the Borrower may elect in the applicable
notice; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) or (c) below) which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day;
(b) no Interest Period for any Revolving Credit Loan shall extend
beyond the Revolving Credit Termination Date; and
(c) no Interest Period applicable to any Term Loan of any Class
shall extend beyond any date upon which is due any scheduled principal payment
in respect of the Term Loans of such Class unless the aggregate principal
amount of Term Loans of such Class represented by Base Rate Loans, or by Fixed
Rate Loans having Interest Periods that will expire on or before such date,
equals or exceeds the amount of such principal payment.
(3) with respect to each Money Market LIBOR Borrowing, the period
commencing on the date of such Borrowing and ending such whole number of
months thereafter as the Borrower may elect in accordance with Section 2.03;
provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date.
(4) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 14 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, time deposit or otherwise.
"Leverage Ratio" means, at any date, the ratio of Total Debt at
such date to Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such date.
"LIBOR Auction" means a solicitation of Money Market Quotes
setting forth Money Market Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" means a Base Rate Loan, a CD Loan, a Euro-Dollar Loan or
a Money Market Loan and "Loans" means any combination of the foregoing, as the
context may require; provided that, if any such Loan or Loans (or portions
thereof) are combined or subdivided pursuant to a Notice of Interest Rate
Election, the term "Loan" shall refer to the combined principal amount
resulting from such combination or to each of the separate principal amounts
resulting from such subdivision, as the case may be.
"Loan Documents" means this Agreement, the Collateral
Documents, the Subsidiary Guarantee Agreement and any Notes delivered pursuant
hereto.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Major Property Insurance Proceeds" means:
(i) the aggregate insurance proceeds from third parties in excess
of $25,000,000 received in connection with one or more related events by the
Borrower or any of its Subsidiaries under any insurance policy maintained by
the Borrower or any of its Subsidiaries covering losses with respect to
tangible real or personal property or improvements or
(ii) any award or other compensation in excess of $25,000,000
received with respect to any condemnation of property (or, in the case of any
transfer or disposition of property in lieu of condemnation, the book value of
such property) by the Borrower or any of its Subsidiaries,
provided that such proceeds, award or other compensation shall not constitute
Major Property Insurance Proceeds if the Borrower notifies the Administrative
Agent promptly after the receipt thereof that such proceeds, award or other
compensation will be committed by the Borrower and its Subsidiaries to be used
to repair or replace the asset so affected within three months of the date of
such notice and will be so used within twelve months of the date of such
notice, but only to the extent such proceeds, award or other compensation is
actually so used.
"Margin Regulations" means Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System, as amended and in effect
from time to time.
"Material Adverse Change" has the meaning specified in Section
4.04(c).
"Material Debt" means Debt (other than under the Loan Documents
) of the Borrower and/or one or more of its Subsidiaries, arising in one or
more related or unrelated transactions, in an aggregate principal amount
exceeding $50,000,000.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $100,000,000.
"Merger" means the "Proposed Merger" between Conrail and the
Offeror (or any other wholly-owned Subsidiary of the Borrower party to the
Subsidiary Pledge Agreement) as described and defined in the First Offer to
Purchase, pursuant to which Conrail shall become a wholly-owned Subsidiary of
the Borrower and its outstanding stock shall cease to be "margin stock" within
the meaning of the Margin Regulations.
"Merger Date" means the date of consummation of the Merger.
"Moody's" means Moody's Investors Service, Inc.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a
Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its
Domestic Lending Office or such other office, branch or affiliate of such Bank
as it may hereafter designate as its Money Market Lending Office by notice to
the Borrower and the Administrative Agent; provided that any Bank may from
time to time by notice to the Borrower and the Administrative Agent designate
separate Money Market Lending Offices for its Money Market LIBOR Loans, on the
one hand, and its Money Market Absolute Rate Loans, on the other hand, in
which case all references herein to the Money Market Lending Office of such
Bank shall be deemed to refer to either or both of such offices, as the
context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the
Base Rate pursuant to Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money
Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.
"Net Cash Proceeds" means, with respect to any Reduction Event,
an amount equal to the cash proceeds received by the Borrower or any of its
Subsidiaries from or in respect of such Reduction Event (including any cash
proceeds received as interest or similar income or other proceeds of any
noncash proceeds of any Asset Sale), less (a) any fees, costs and expenses
reasonably incurred by such Person in respect of such Reduction Event and (b)
if such Reduction Event is an Asset Sale, (i) the amount of any Debt secured
by a Lien on any asset disposed of in such Asset Sale and discharged from the
proceeds thereof, (ii) any taxes actually paid or to be payable by such Person
(as estimated by a senior financial or accounting officer of the Borrower,
giving effect to the overall tax position of the Borrower) in respect of such
Asset Sale, (iii) all payments made with respect to liabilities associated
with the assets which are the subject of the Asset Sale, including, without
limitation, trade payables and other accrued liabilities, (iv) appropriate
amounts to be provided by such Person or any Subsidiary thereof, as the case
may be, as a reserve in accordance with generally accepted accounting
principles against any liabilities associated with such assets and retained by
such Person or any Subsidiary thereof, as the case may be, after such Asset
Sale, including, without limitation, liabilities under any indemnification
obligations and severance and other employee termination costs associated with
such Asset Sale, until such time as such amounts are no longer reserved or
such reserve is no longer necessary (at which time any remaining amounts will
become Net Cash Proceeds); and (v) all distributions and other payments
required to be made (or made on a pro rata basis) to minority interest holders
in Subsidiaries of such Person as a result of such Reduction Event.
"Net Consolidated Capital Expenditures" means, for any period
with respect to the Borrower and its Consolidated Subsidiaries, (i)
Consolidated Capital Expenditures for such period plus (ii) to the extent not
included in such Consolidated Capital Expenditures, the aggregate amount of
expenditures or additions to property, plant and equipment and other capital
expenditures financed with the proceeds of capital leases or other Debt minus
(iii) the Net Cash Proceeds of any sale, transfer or other disposition of
assets described in clause (iii) or (vi) of the definition of "Asset Sale"
and consummated during such period or any prior period or (y) insurance
proceeds received during such period or any prior period. On the basis set
forth in the immediately preceding sentence, (x) Net Consolidated Capital
Expenditures for the fiscal quarter ended June 30, 1996 were $306,000,000 and
(y) Net Consolidated Capital Expenditures for the fiscal quarter ended
September 30, 1996 were $238,000,000.
"Notes" has the meaning set forth in Section 2.16(b).
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.10.
"Obligor" means the Borrower or any Subsidiary Guarantor, and
"Obligors" means all of the foregoing.
"Offeror" means Atlantic Acquisition Corporation, a
Pennsylvania corporation and a wholly-owned Subsidiary of the Borrower, and
its successors.
"Parent" means, with respect to any Bank, any Person
controlling such Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed to,
by any Person which was at such time a member of the ERISA Group for employees
of any Person which was at such time a member of the ERISA Group.
"Pledge Agreement" means the Borrower Pledge Agreement or the
Subsidiary Pledge Agreement, and "Pledge Agreements" means both of them.
"Pricing Schedule" means the Schedule attached hereto
identified as such.
"Prime Rate" means the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York in New York City from time to time
as its Prime Rate.
"Quarterly Dates" means each March 31, June 30, September 30
and December 31.
"Reduction Event" means (i) any Asset Sale, (ii) the incurrence
of any Debt by the Borrower or any of its Subsidiaries in reliance on
subsection (c) or (j) of Section 5.11, (iii) the incurrence of any Debt by the
Borrower or a Subsidiary in reliance on subsection (i) of Section 5.11 ("CP
Debt") if, and solely to the extent that, (A) such CP Debt is incurred after
the Acquisition Date ("Post Acquisition CP Debt"), (B) after giving effect
thereto and the application of the proceeds thereof, the aggregate outstanding
principal amount of CP Debt (whenever incurred) is increased and (C) after
giving effect thereto and the application of the proceeds thereof, the
aggregate outstanding principal amount of Post Acquisition CP Debt exceeds the
aggregate principal amount of Post Acquisition CP Debt which has previously
given rise to a Reduction Event pursuant to this clause (iii) , (iv) the
issuance of any equity securities by the Borrower or any of its Subsidiaries
(other than (w) equity securities issued in consideration for the acquisition
of any assets (including, without limitation, any equity interests of any
other Person), (x) equity securities issued to the Borrower or any of its
Subsidiaries, (y) directors' qualifying shares and (z) equity securities
issued in the ordinary course of business in connection with now or hereafter
existing employee stock purchase plans and other employee compensation
arrangements (but excluding from this clause (z) any equity securities issued
or sold to Conrail's Matched Savings Plan (or any successor plan) and
purchased by such Plan (or any successor plan), (v) receipt of Major Property
Insurance Proceeds, (vi) any Extraordinary Distribution (as defined in either
Pledge Agreement) by the Voting Trust or (vii) receipt by the Borrower or any
of its Subsidiaries at any time on or after the Consummation Date of any
payment with respect to amounts outstanding under the loan between Conrail and
the trust under Conrail's Matched Savings Plan (other than repayments in an
amount not exceeding the sum of (a) any amounts contributed by the Borrower or
any of its Subsidiaries to such trust and (b) any dividends received by such
trust with respect to stock of the Borrower or any of its Subsidiaries). The
description of any transaction as falling within the above definition does not
affect any limitation on such transaction imposed by Article 5 of this
Agreement.
"Reference Banks" means the CD Reference Banks or the
Euro-Dollar Reference Banks, as the context may require, and "Reference Bank"
means any one of such Reference Banks.
"Release Event" means that the Borrower's senior unsecured
long-term debt is rated BBB- or higher by S&P and Baa3 or higher by Moody's.
The credit ratings to be utilized for purposes of this definition shall be the
new (or confirmed) ratings of the Borrower's senior unsecured long-term debt
announced (either before or after the Acquisition) by Moody's and S&P giving
effect to the Acquisition (and, if applicable, giving effect to the
termination of the Collateral Documents as a consequence of such rating).
"Required Banks" means at any time Banks having at least 51% of
the aggregate amount of the Exposures at such time.
"Restricted Investment" means any Investment in Conrail or any
of its Subsidiaries, including without limitation any purchase of any shares
of Common Stock, Series A ESOP Convertible Junior Preferred Stock or any other
capital stock of Conrail, other than (i) the Acquisition itself and (ii) the
Initial Conrail Investment.
"Revolving Credit Bank" means each Bank identified in the
Commitment Schedule as having a Revolving Credit Commitment and each Assignee
which acquires a Revolving Credit Commitment and/or Revolving Credit Loans
pursuant to Section 9.06(c), and their respective successors.
"Revolving Credit Commitment" means,
(i) with respect to each Revolving Credit Bank listed on the
signature pages hereof, the amount set forth opposite the name of such Bank
under the heading "Revolving Credit Commitment" in the Commitment Schedule, or
(ii) with respect to each Assignee which becomes a Revolving
Credit Bank pursuant to Section 9.06(c), the amount of the Revolving Credit
Commitment thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.9 or 2.12 or increased or reduced by reason of an assignment to or
by such Bank in accordance with Section 9.06(c).
"Revolving Credit Loan" means a loan made by a Revolving Credit
Bank pursuant to Section 2.01(d).
"Revolving Credit Period" means the period from and including
the Closing Date to but not including the Revolving Credit Termination Date.
"Revolving Credit Termination Date" means August 1, 1997;
provided that the Revolving Credit Termination Date shall be extended to the
date which is the fifth anniversary of the Closing Date if on or prior to
August 1, 1997 the Acquisition Date shall have occurred (or, if such fifth
anniversary date is not a Euro-Dollar Business Day, the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the Revolving Credit Termination Date shall be
the next preceding Euro-Dollar Business Day).
"Second Offer" means the offer by the Offeror to purchase all
the outstanding shares of Common Stock and Series A ESOP Convertible Junior
Preferred Stock of Conrail at $115 net per share pursuant to the Second Offer
to Purchase.
"Second Offer to Purchase" means an Offer to Purchase by the
Offeror to the stockholders of Conrail, the terms and conditions of which
Offer to Purchase shall be substantially identical to those of the First Offer
to Purchase as supplemented as of December 20, 1996, as amended from time to
time in accordance with its terms; provided that no such amendment (other than
(i) any amendment effecting an extension of the expiration date of the Second
Offer and (ii) any amendments not affecting the conditions to or any material
term of the Second Offer) shall be effective for purposes of references
thereto in this Agreement unless approved in writing by the Required Banks.
"Significant Subsidiary" means, at any time, (i) Norfolk
Southern Railway Company, (ii) Norfolk and Western Railway Company, (iii) the
Offeror, (iv) solely on and after the Consummation Date, Conrail and (v) each
other Subsidiary (x) whose assets (or, in the case of a Subsidiary which has
subsidiaries, consolidated assets) as shown on the latest financial statements
delivered by the Borrower pursuant to, prior to the Consummation Date, Section
5.01(a)(ii) or (b)(y) and, on or after the Consummation Date, Section
5.01(a)(i) or (b)(x), as the case may be, are (A) at least 5% of the
consolidated assets of the Borrower and its Consolidated Subsidiaries
(including for such purpose Conrail and its Subsidiaries, all as shown on such
financial statements) at such time and (B) at least $1,500,000,000 or (y)
whose operating income (or, in the case of a Subsidiary which has
subsidiaries, consolidated operating income) as shown on the latest financial
statements delivered by the Borrower pursuant to, prior to the Consummation
Date, Section 5.01(a)(ii) or (b)(y) and, on or after the Consummation Date,
Section 5.01(a)(i) or (b)(x), as the case may be, is (A) at least 5% of the
consolidated operating income of the Borrower and its Consolidated
Subsidiaries (including for such purpose Conrail and its Subsidiaries, all as
shown on such financial statements) at such time and (B) at least $150,000,000.
"STB" means the Surface Transportation Board, an agency of the
Federal Government of the United States of America.
"STB Approval Date" means the date on which the STB approves
the acquisition of control of Conrail by the Borrower, without any terms or
conditions not satisfactory to the Borrower.
"Subsidiary" means, with respect to any Person, any corporation
or other entity of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or indirectly
owned by such Person; unless otherwise specified, a "Subsidiary" means a
Subsidiary of the Borrower. Except as otherwise specified, the Voting Trust
and Conrail and its Subsidiaries shall not be deemed Subsidiaries of the
Borrower prior to the Consummation Date.
"Subsidiary Guarantee Agreement" means a Subsidiary Guarantee
Agreement by the Subsidiary Guarantors in favor of the Administrative Agent in
substantially the form of Exhibit B.
"Subsidiary Guarantors" means the Significant Subsidiaries from
time to time parties to the Subsidiary Guarantee Agreement.
"Subsidiary Pledge Agreement" means the Pledge Agreement to be
entered into between the Significant Subsidiaries and the Administrative Agent
for the benefit of the Secured Parties named therein, in substantially the
form of Exhibit A-2, in respect of the Trust Certificates (as defined in the
Voting Trust Agreement) held by Offeror and the capital stock and indebtedness
of any Significant Subsidiary owned directly by any such Significant
Subsidiary.
"Term Availability Period" means the period from and including
the Closing Date to and including the Merger Date.
"Term Loan" means a Term Loan-I, a Term Loan-II or a Term
Loan-III.
"Term Loan Bank" means a Term Loan-I Bank, a Term Loan-II Bank
or a Term Loan-III Bank.
"Term Loan Commitment" means a Term Loan-I Commitment, a Term
Loan-II Commitment or a Term Loan-III Commitment.
"Term Loan-I" means a loan made by a Term Loan-I Bank pursuant
to Section 2.01(a).
"Term Loan-I Bank" means each Bank identified in the Commitment
Schedule as having a Term Loan-I Commitment and each Assignee which acquires a
Term Loan-I Commitment and/or Term Loan-I pursuant to Section 9.06(c), and
their respective successors.
"Term Loan-I Commitment" means,
(i) with respect to each Term Loan-I Bank listed on the signature
pages hereof, the amount set forth opposite the name of such Bank under the
heading "Term Loan-I Commitment" in the Commitment Schedule, or
(ii) with respect to each Assignee which becomes a Term Loan-I Bank
pursuant to Section 9.06(c), the amount of the Term Loan-I Commitment thereby
assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.9 or 2.12 or increased or reduced by reason of an assignment to or
by such Bank in accordance with Section 9.06(c).
"Term Loan-II" means a loan made by a Term Loan-II Bank pursuant to
Section 2.01(b).
"Term Loan-II Bank" means each Bank identified in the Commitment
Schedule as having a Term Loan-II Commitment and each Assignee which acquires
a Term Loan-II Commitment and/or Term Loan-II pursuant to Section 9.06(c), and
their respective successors.
"Term Loan-II Commitment" means,
(i) with respect to each Term Loan-II Bank listed on the signature
pages hereof, the amount set forth opposite the name of such Bank under the
heading "Term Loan-II Commitment" in the Commitment Schedule, or
(ii) with respect to each Assignee which becomes a Term Loan-II
Bank pursuant to Section 9.06(c), the amount of the Term Loan-II Commitment
thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.9 or 2.12 or increased or reduced by reason of an assignment to or
by such Bank in accordance with Section 9.06(c).
"Term Loan-III" means a loan made by a Term Loan-III Bank pursuant to
Section 2.01(c).
"Term Loan-III Bank" means each Bank identified in the Commitment
Schedule as having a Term Loan-III Commitment and each Assignee which acquires
a Term Loan-III Commitment and/or Term Loan-III pursuant to Section 9.06(c),
and their respective successors.
"Term Loan-III Commitment" means,
(i) with respect to each Term Loan-III Bank listed on the
signature pages hereof, the amount set forth opposite the name of such Bank
under the heading "Term Loan-III Commitment" in the Commitment Schedule, or
(ii) with respect to each Assignee which becomes a Term Loan-III
Bank pursuant to Section 9.06(c), the amount of the Term Loan-III Commitment
thereby assumed by it,
in each case as such amount may be reduced from time to time pursuant to
Section 2.9 or 2.12 or increased or reduced by reason of an assignment to or
by such Bank in accordance with Section 9.06(c).
"Total Debt" means at any date the aggregate amount of Debt of
the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis as of such date.
"Type" has the meaning set forth in Section 1.03.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all benefit
liabilities under such Plan exceeds (ii) the fair market value of all Plan
assets allocable to such benefit liabilities (excluding any accrued but unpaid
contributions), but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"United States" means the United States of America, including
the States and the District of Columbia, but excluding its territories and
possessions.
"Voting Trust" means the voting trust established pursuant to
the Voting Trust Agreement.
"Voting Trust Agreement" means the Voting Trust Agreement
contemplated by the First Offer to Purchase, as amended and in effect on the
Acquisition Date and as the same may be further amended from time to time in
accordance with the provisions thereof and hereof.
Section 1.2. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in
by the Borrower's independent public accountants) with the then most recent
audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Borrower notifies
the Administrative Agent that the Borrower wishes to amend any covenant in
Article 5 to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Banks wish to
amend Article 5 for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Banks. The pro forma condensed financial statements to be
delivered by the Borrower pursuant to Sections 5.01(a)(ii) or 5.01(b)(y)(A)
shall be prepared on a basis consistent with the pro forma condensed financial
information presented in the Information Memorandum.
Section 1.3. Classes and Types of Loans and Borrowings. The
term "Borrowing" denotes the aggregation of Loans of one or more Banks to be
made to the Borrower pursuant to Article 2 on the same date, all of which
Loans are of the same Class and Type (subject to Article 8) and, except in the
case of Base Rate Loans, have the same initial Interest Period. Loans
hereunder are distinguished by "Class" and by "Type". The "Class" of a Loan
(or of a Commitment to make such a Loan or of a Borrowing comprised of such
Loans) refers to the determination whether such Loan is a Term Loan-I, Term
Loan-II, Term Loan-III or Revolving Credit Loan, each of which constitutes a
Class. The "Type" of a Loan refers to the determination whether such Loan is
a Euro-Dollar Loan, a CD Loan, a Base Rate Loan or a Money Market Loan, each
of which constitutes a "Type". Identification of a Loan (or a Borrowing) by
both Class and Type (e.g., a "Euro-Dollar Term Loan-I") indicates that such
Loan is both a Term Loan-I and a Euro-Dollar Loan (or that such Borrowing is
comprised of such Loans).
ARTICLE 2
THE CREDIT
Section 2.1. Commitments to Lend. (a) Term Loan-I Facility.
During the Term Availability Period each Term Loan-I Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make a Term Loan-I to
the Borrower on each of the Acquisition Date and the Merger Date in amounts
not to exceed in the aggregate the amount of its Term Loan-I Commitment. The
Term Loan-I Commitments are not revolving in nature, and amounts repaid or
prepaid pursuant to Section 2.11 or Section 2.12 shall not be reborrowed.
(b) Term Loan-II Facility. During the Term Availability Period each
Term Loan-II Bank severally agrees, on the terms and conditions set forth in
this Agreement, to make a Term Loan-II to the Borrower on each of the
Acquisition Date and the Merger Date in amounts not to exceed in the aggregate
the amount of its Term Loan-II Commitment. The Term Loan-II Commitments are
not revolving in nature, and amounts repaid or prepaid pursuant to Section
2.11 or Section 2.12 shall not be reborrowed.
(c) Term Loan-III Facility. During the Term Availability Period each
Term Loan-III Bank severally agrees, on the terms and conditions set forth in
this Agreement, to make a Term Loan-III to the Borrower on each of the
Acquisition Date and the Merger Date in amounts not to exceed in the aggregate
the amount of its Term Loan-III Commitment. The Term Loan-III Commitments are
not revolving in nature, and amounts repaid or prepaid pursuant to Section
2.11 or Section 2.12 shall not be reborrowed.
(d) Revolving Credit Facility. During the Revolving Credit Period, each
Revolving Credit Bank severally agrees, on the terms and conditions set forth
in this Agreement, to make Revolving Credit Loans to the Borrower from time to
time in an aggregate amount at any time outstanding not to exceed the amount
of its Revolving Credit Commitment. Within the limits specified in this
Agreement, the Borrower may borrow under this Section 2.01(d), prepay
Revolving Credit Loans to the extent permitted by Section 2.11 and reborrow at
any time during the Revolving Credit Period pursuant to this Section 2.01(d).
(e) Minimum Amount. Each Borrowing under this Section 2.01 shall be in
the aggregate principal amount of $25,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount of
the unused Commitments of the relevant Class) and shall be made from the
several Banks ratably in proportion to their respective Commitments of the
relevant Class.
Section 2.2. Notice of Committed Borrowings. The Borrower
shall give the Administrative Agent notice (a "Notice of Committed Borrowing")
not later than 10:30 A.M. (New York City time) on (x) the date of each Base
Rate Borrowing, (y) the second Domestic Business Day before each CD Borrowing
and (z) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case
of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) the Class and initial Type of Loans comprising such Borrowing; and
(d) in the case of a Fixed Rate Borrowing, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Section 2.3. Money Market Borrowings.
(a) The Money Market Option. In addition to Revolving Credit Borrowings
pursuant to Section 2.01, but within the limitations of the Revolving Credit
Commitments as contemplated by Sections 3.04(b) and (c), the Borrower may, as
set forth in this Section, request (but is not obligated to request) the Banks
from time to time prior to the Revolving Credit Termination Date to make
offers to make Money Market Loans to the Borrower. The Banks may make, but
shall have no obligation to make, such offers and the Borrower may accept, but
shall have no obligation to accept, any such offers in the manner set forth in
this Section.
(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit G hereto so as to be received no
later than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar
Business Day prior to the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) the Domestic Business Day next preceding the date of
Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not
later than the date of the Money Market Quote Request for the first LIBOR
Auction or Absolute Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in the
case of an Absolute Rate Auction,
(ii) the proposed aggregate amount of such Borrowing, which shall
be $25,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Administrative Agent shall send to the Banks
by telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit H hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request
relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Administrative Agent by telex or facsimile transmission at
its offices specified in or pursuant to Section 9.01 not later than (x) 2:00
P.M. (New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M.
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective); provided that Money Market Quotes submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Bank may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Borrower of the terms of
the offer or offers contained therein not later than (x) one hour prior to the
deadline for the other Banks, in the case of a LIBOR Auction or (y) 15 minutes
prior to the deadline for the other Banks, in the case of an Absolute Rate
Auction. Subject to Articles 3 and 6, any Money Market Quote so made shall be
irrevocable except with the written consent of the Administrative Agent given
on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit I hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be greater than
or less than the Commitment of the quoting Bank, (x) must be $5,000,000 or a
larger multiple of $1,000,000, (y) may not exceed the principal amount of
Money Market Loans for which offers were requested and (z) may be subject to
an aggregate limitation as to the principal amount of Money Market Loans for
which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or subtracted from such base
rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the "Money
Market Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if
it:
(A) is not substantially in conformity with Exhibit I hereto
or does not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly notify
the Borrower of the terms (x) of any Money Market Quote submitted by a Bank
that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money
Market Quote submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be disregarded by
the Administrative Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money Market
Quote. The Administrative Agent's notice to the Borrower shall specify (A)
the aggregate principal amount of Money Market Loans for which offers have
been received for each Interest Period specified in the related Money Market
Quote Request, (B) the respective principal amounts and Money Market Margins
or Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market
Loans for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (New
York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the Administrative Agent
shall have mutually agreed and shall have notified to the Banks not later than
the date of the Money Market Quote Request for the first LIBOR Auction or
Absolute Rate Auction for which such change is to be effective), the Borrower
shall notify the Administrative Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to subsection (e). In the case of
acceptance, such notice (a "Notice of Money Market Borrowing") shall specify
the aggregate principal amount of offers for each Interest Period that are
accepted. The Borrower may accept any Money Market Quote in whole or in part;
provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request,
(ii) the aggregate principal amount of each Money Market Borrowing
must be $25,000,000 or a larger multiple of $1,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Money Market Margins or Money Market Absolute Rates, as the case may
be, and
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two or
more Banks with the same Money Market Margins or Money Market Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount
in respect of which such offers are accepted for the related Interest Period,
the principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Administrative Agent
of the amounts of Money Market Loans shall be conclusive in the absence of
manifest error.
Section 2.4. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Bank participating therein of the contents thereof
and of such Bank's share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Bank participating therein shall make available its share of
such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address specified in or pursuant to
Section 9.01. Unless the Administrative Agent determines that any applicable
condition specified in Article 3 has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the Borrower
at the Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.04 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Administrative Agent, such Bank and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and
the interest rate applicable thereto pursuant to Section 2.06 and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
Section 2.5. Maturity of Loans. (a) Each Term Loan-I shall
mature, and the principal amount thereof shall be due and payable in full
together with accrued interest thereon, on the earlier of (i) the date which
falls six months after the date on which the STB issues its final order with
respect to the acquisition of control of Conrail by the Borrower (regardless of
whether such date is the STB Approval Date) and (ii) the third anniversary of
the Closing Date; provided that, in any event, $1,000,000,000 of the principal
amount of Term Loan - I shall be payable on the date which is 12 months after
the Acquisition Date.
(b) Each Term Loan-II shall mature, and the principal amount thereof
shall be due and payable in full together with accrued interest thereon, on
the earlier of the date falling thirty months after the date on which the STB
issues its final order with respect to the acquisition of control of Conrail
by the Borrower (regardless of whether such date is the STB Approval Date) and
the fifth anniversary of the Closing Date.
(c) Each Term Loan-III shall mature, and the principal thereof shall be
payable, in installments as set forth below; provided that (i) solely with
respect to the installments of the Term Loan-III payable on March 31, 1997, if
the Merger Date shall not have occurred on or prior to such date, (x) the
amount of the installment to be repaid on such date shall be $0 and (y) the
amount of the installment payable on the last date set forth below shall be
increased by $75,000,000 and (ii) solely with respect to the installments of
the Term Loan-III payable on June 30, 1997, if the Merger Date shall not have
occurred on or prior to such date, (x) the amount of the installment to be
repaid on such date shall be $0 and (y) the amount of the installment payable
on the last date set forth below shall be further increased by $75,000,000:
Date Amount Due
3/31/97 75,000,000
6/30/97 75,000,000
9/30/97 75,000,000
12/31/97 75,000,000
3/31/98 75,000,000
6/30/98 75,000,000
9/31/98 75,000,000
12/31/98 75,000,000
3/31/99 125,000,000
6/30/99 125,000,000
9/30/99 125,000,000
12/31/99 125,000,000
3/31/00 125,000,000
6/30/00 125,000,000
9/30/00 125,000,000
12/31/00 125,000,000
3/31/01 125,000,000
6/30/01 125,000,000
9/30/01 125,000,000
12/31/01 125,000,000
3/31/02 125,000,000
6/30/02 125,000,000
9/30/02 125,000,000
12/31/02 125,000,000
3/31/03 100,000,000
6/30/03 300,000,000
(d) Each Revolving Credit Loan shall mature, and the principal amount
thereof shall be payable in full together with accrued interest thereon, on
the Revolving Credit Termination Date.
(e) Each Money Market Loan included in any Money Market Borrowing
shall mature, and the principal amount thereof shall be due and payable, on
the last day of the Interest Period applicable to such Borrowing.
Section 2.6. Interest Rates. (a) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day from
the day such Loan is made to but excluding the day it becomes due, at a rate
per annum equal to the sum of the Applicable Margin plus the Base Rate for
such day. Such interest shall be payable at maturity, quarterly in arrears on
each Quarterly Date prior to maturity and, with respect to the principal
amount of any Base Rate Loan converted to a Fixed Rate Loan, on the date such
Loan is so converted.
(b) Each CD Loan shall bear interest on the outstanding principal amount
thereof, for each day during each Interest Period applicable thereto, at a
rate per annum equal to the sum of the Applicable Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period; provided that if any CD
Loan or any portion thereof shall, as a result of the definition of Interest
Period, have an Interest Period of less than 30 days, such portion shall bear
interest for each day during such Interest Period at the rate applicable to
Base Rate Loans for such day. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than 90 days, 90 days after the first day thereof.
The "Adjusted CD Rate" applicable to any Interest Period means
a rate per annum determined pursuant to the following formula:
[ CDBR ] *
------------
ACDR = [ 1.00 - DRP] + AR
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
__________
* The amount in brackets being rounded upward, if necessary, to
the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the
rate of interest determined by the Administrative Agent to be the average
(rounded upward, if necessary, to the next higher 1/100 of 1%) of the
prevailing rates per annum bid at 10:00 A.M. (New York City time) (or as soon
thereafter as practicable) on the first day of such Interest Period by two or
more New York certificate of deposit dealers of recognized standing for the
purchase at face value from each CD Reference Bank of its certificates of
deposit in an amount comparable to the principal amount of the CD Loan of such
CD Reference Bank to which such Interest Period applies and having a maturity
comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars
in respect of new non-personal time deposits in dollars in New York City
having a maturity comparable to the related Interest Period and in an amount
of $100,000 or more. The Adjusted CD Rate shall be adjusted automatically on
and as of the effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate
in effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
United States. The Adjusted CD Rate shall be adjusted automatically on and as
of the effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for
such day plus the London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than three months, three
months after the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal
to the principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference
Bank to which such Interest Period is to apply and for a period of time
comparable to such Interest Period.
(d) Subject to Section 8.01(a), each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.06(c) as if the related Money Market LIBOR Borrowing were a
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the
Bank making such Loan in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day thereof.
(e) Any overdue principal of or interest on any Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of the Applicable Margin for Base Rate Loans plus the Base Rate for
such day.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence
of manifest error.
(g) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Administrative Agent as contemplated by this
Section. If any Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the basis
of the quotation or quotations furnished by the remaining Reference Bank or
Banks or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
Section 2.7. Regulation D Compensation. Each Bank may require
the Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Bank at a rate per annum determined by such Bank up to but not exceeding the
excess of (i) (A) the applicable London Interbank Offered Rate divided by (B)
one minus the Euro-Dollar Reserve Percentage over (ii) the applicable London
Interbank Offered Rate. Any Bank wishing to require payment of such
additional interest (x) shall so notify the Borrower and the Administrative
Agent, in which case such additional interest on the Euro-Dollar Loans of such
Bank shall be payable to such Bank at the place indicated in such notice with
respect to each Interest Period commencing at least three Euro-Dollar Business
Days after the giving of such notice and (y) shall notify the Borrower at
least five Euro-Dollar Business Days prior to each date on which interest is
payable on the Euro-Dollar Loans of the amount then due it under this Section.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank
of the Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which
the interest rate on Euro-Dollar Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United
States office of any Bank to United States residents). The compensation
payable pursuant to this Section shall be adjusted automatically on and as of
the effective date of any change in the Euro-Dollar Reserve Percentage.
Section 2.8. Facility Fees. The Borrower shall pay to the
Administrative Agent, for the account of the Banks ratably in accordance with
their respective Exposures, a facility fee for each day at a rate per annum
equal to the Facility Fee Rate for such day (determined in accordance with the
Pricing Schedule), on the aggregate amount of the Exposures on such day. Such
facility fees shall accrue for each day from and including the Closing Date to
but excluding the date on which no Bank has any Exposure (the "Termination
Date"). Accrued fees under this Section shall be payable quarterly in arrears
on each Quarterly Date and on the Termination Date.
Section 2.9. Optional Termination or Reduction of Commitments.
The Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments of any Class at any time,
if no Loans of such Class are outstanding at such time (after giving effect to
any mandatory or optional prepayments to be made at such time) or (ii) ratably
reduce from time to time by an aggregate amount of $10,000,000 or a larger
multiple of $1,000,000, the aggregate amount of the Commitments of any Class
in excess of the aggregate outstanding amount of the Loans of such Class.
Section 2.10. Method of Electing Interest Rates. (a) The
Committed Loans included in each Borrowing shall bear interest initially at
the type of rate specified by the Borrower in the applicable Notice of
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Term Loans and
Revolving Credit Loans (subject in each case to the provisions of Article 8
and the last sentence of this subsection (a)), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to CD Loans as of any Domestic Business Day or to
Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to convert
such Loans to Base Rate Loans or Euro-Dollar Loans or elect to continue such
Loans as CD Loans for an additional Interest Period, in either case effective
on the last day of the then current Interest Period applicable to such Loans;
and
(iii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or CD Loans or elect to continue such
Loans as Euro-Dollar Loans for an additional Interest Period, in either case
effective on the last day of the then current Interest Period applicable to
such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent not later than 10:30 A.M. (New
York City time) on the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the
aggregate principal amount of the relevant Group of Loans; provided that (i)
such portion is allocated ratably among the Loans comprising such Group and
(ii) the portion to which such Notice applies, and the remaining portion to
which it does not apply, are each $25,000,000 or any larger multiple of
$1,000,000. If no such notice is timely received prior to the end of an
Interest Period, the Borrower shall be deemed to have elected that all Loans
having such Interest Period be converted to Base Rate Loans. Notwithstanding
the foregoing, the Borrower may not elect to convert any Loan to, or continue
any Loan as, a Fixed Rate Loan pursuant to any Notice of Interest Rate
Election if at the time such notice is delivered a Default shall have occurred
and be continuing.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable clause
of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new Type of Loans and, if the Loans being converted are to be Fixed Rate
Loans, the duration of the next succeeding Interest Period applicable thereto;
and
(iv) if such Loans are to be continued as Fixed Rate Loans for an
additional Interest Period, the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the Borrower
pursuant to subsection (a) above, the Administrative Agent shall promptly
notify each Bank of the contents thereof and such notice shall not thereafter
be revocable by the Borrower.
(d) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall not
constitute a "Borrowing" subject to the provisions of Section 3.04.
Section 2.11. Optional Prepayments. (a) The Borrower may,
(i) upon at least one Domestic Business Day's notice to the Administrative
Agent, prepay the Group of Base Rate Loans of any Class (or any Money Market
Borrowing bearing interest at the Base Rate pursuant to Section 8.01(a)) or
(ii) upon at least (x) in the case of CD Loans, one Domestic Business Day's
notice to the Administrative Agent and (y) in the case of Euro-Dollar Loans,
three Euro-Dollar Business Days' notice to the Administrative Agent, and
subject, in each case, to Section 2.14, prepay any Group of Fixed Rate Loans
of any Class, in each case in whole at any time, or from time to time in part
in amounts aggregating $25,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment of a Group
of Loans shall be applied to prepay ratably the Loans of the Banks included in
such Group.
(b) Except as provided in subsection (a) of this Section 2.11, the
Borrower may not prepay all or any portion of the principal amount of any
Money Market Loan prior to the maturity thereof without the consent of the
Bank holding such Loan.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
Section 2.12. Mandatory Reduction and Termination of
Commitments; Mandatory Prepayments. (a) Subject to subsection (b) below,
the Term Commitments shall terminate at the close of business on the last day
of the Term Availability Period and the Revolving Credit Commitments shall
terminate on the Revolving Credit Termination Date.
(b) If the Acquisition Date shall not have occurred on or prior to
August 1, 1997, all Term Commitments shall terminate on such date.
(c) Each Term Commitment shall be reduced on the date of and by the
principal amount of each Term Loan made pursuant thereto.
(d) If a Reduction Event shall occur, an amount equal to the Net Cash
Proceeds thereof shall be applied in the following order of priority until
such amount has been fully applied:
First, to the reduction of the unused portion of the Term
Loan-I Commitments until such unused portion shall have been reduced
to zero;
Second, to the reduction of the unused portion of the Term
Loan-II Commitments until such unused portion shall have been reduced
to zero;
Third, to the reduction of the unused portion of the Term
Loan-III Commitments until such unused portion shall have been
reduced to zero;
Fourth, to the prepayment of Term Loans-I, until the Term
Loans-I shall have been prepaid in full;
Fifth, to the prepayment of Term Loans-II, until the Term
Loans-II shall have been prepaid in full; and
Sixth, to the prepayment of Term Loans-III, until the Term
Loans-III shall have been prepaid in full.
Each such reduction and/or prepayment shall be made within five
Euro-Dollar Business Days receipt by the Borrower or any of its Subsidiaries,
as the case may be, of such Net Cash Proceeds, provided that
(i) if the Net Cash Proceeds in respect of any Reduction Event are
less than $5,000,000, such reduction and/or prepayment shall be effective upon
receipt of proceeds such that, together with all other such amounts not
previously applied, the Net Cash Proceeds are equal to at least $5,000,000; and
(ii) if any prepayment would otherwise require prepayment of Fixed
Rate Loans or portions thereof prior to the last day of the then current
Interest Period, then such prepayment shall, unless the Administrative Agent
otherwise notifies the Borrower upon the instructions of the Required Banks,
be deferred to the last day of such Interest Period.
The Borrower shall give the Administrative Agent at least five Euro-Dollar
Business Days' notice of each prepayment required to be made pursuant to this
subsection (d).
(e) Applications of Reductions and Prepayments.
(i) Each reduction of the Term Commitments and/or prepayment of
Term Loans shall be applied ratably to the respective Term Commitments and/or
Term Loans of the relevant Class of all Term Loan Banks.
(ii) The amount of any reduction of the Term Loan-I Commitments
and/or prepayments of Term Loans-I pursuant to Sections 2.09, this Section
2.12 or Section 2.11 shall be applied to reduce the amount of the scheduled
prepayments of the Term Loans-I required pursuant to the proviso set forth in
Section 2.05(a) until such amount is reduced to zero.
(iii) The amount of any reduction of the Term Loan-III Commitments
and/or prepayment of Term Loans-III pursuant to Section 2.09, this Section
2.12 or Section 2.11 shall be applied to reduce ratably by amount the then
remaining amounts of subsequent scheduled payments of the Term Loans-III
required pursuant to Section 2.05.
(iv) Each payment of principal of the Term Loans of any Class shall
be made together with interest accrued and unpaid on the amount repaid to the
date of payment.
(v) Each payment of the Term Loans of any Class shall be applied
to such Group or Groups of Loans of such Class as the Borrower may designate
(or, failing such designation, as determined by the Administrative Agent).
Section 2.13. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans
and of fees hereunder, not later than 12:00 Noon (New York City time) on the
date when due, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address referred to in Section 9.01.
The Administrative Agent will promptly distribute to each Bank, for the
account of its Applicable Lending Office, its ratable share of each such
payment received by the Administrative Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the Domestic Loans or of
fees shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. Whenever any payment of principal of, or interest
on, the Money Market Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day, unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such
due date an amount equal to the amount then due such Bank. If and to the
extent that the Borrower shall not have so made such payment, each Bank shall
repay to the Administrative Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to the Administrative Agent, at the Federal Funds Rate.
Section 2.14. Funding Losses. If the Borrower makes any
payment of principal with respect to any Fixed Rate Loan or any Fixed Rate
Loan is converted (pursuant to Article 6 or 8 or otherwise) on any day other
than the last day of the Interest Period applicable thereto, or if the
Borrower fails to borrow, prepay, convert or continue any Fixed Rate Loans
after notice has been given to any Bank in accordance with Section 2.04(a),
2.10(c) or 2.11(c), the Borrower shall reimburse each Bank within 15 days
after demand for any resulting loss or expense incurred by it (or by an
existing or prospective Participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any such
payment or failure to borrow, provided that such Bank shall have delivered to
the Borrower a certificate as to the amount of such loss or expense indicating
in reasonable detail the computation thereof, which certificate shall be
conclusive in the absence of manifest error.
Section 2.15. Computation of Interest and Fees. Interest
based on the Prime Rate hereunder shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other
interest and fees shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day).
Section 2.16. Registry. (a) The Administrative Agent shall
maintain a register (the "Register") on which it will record the Commitment(s)
of each Bank, each Loan made by such Bank and each repayment of any Loan made
by such Bank. Any such recordation by the Administrative Agent on the
Register shall be conclusive, absent manifest error. With respect to any Bank,
the assignment or other transfer of the Commitments of such Bank and the rights
to the principal of, and interest on, any Loan made and Note issued pursuant
to this Agreement shall not be effective until such assignment or other
transfer is recorded on the Register and otherwise complies with Section
9.06(c). The registration of assignment or other transfer of all or part of
any Commitments, Loans and Notes for a Bank shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement referred to in Section 9.06(c). The Register shall be
available at the offices where kept by the Administrative Agent for inspection
by the Borrower and any Bank at any reasonable time upon reasonable prior
notice to the Administrative Agent. The Borrower may not replace any Bank
pursuant to Section 8.06 unless, with respect to any Notes held by such Bank,
the requirements of this subsection have been satisfied. Each Bank shall
record on its internal records (including computerized systems) the foregoing
information as to its own Commitment(s) and Loans. Failure to make any such
recordation, or any error in such recordation, shall not affect the
obligations of any Obligor under the Loan Documents in respect of the Loans.
(b) The Borrower hereby agrees that, upon the request of any Bank at any
time, such Bank's Loans shall be evidenced by a promissory note or notes of
the Borrower (each a "Note"), substantially in the form of Exhibit C hereto,
payable to the order of such Bank and representing the obligation of the
Borrower to pay the unpaid principal amount of the Loans made by such Bank,
with interest as provided herein on the unpaid principal amount from time to
time outstanding.
ARTICLE 3
CONDITIONS TO BORROWING
The obligation of each Bank to make a Loan on the occasion of any Borrowing
is subject to the satisfaction of the following conditions:
Section 3.1. First Borrowing Date. In the case of the
Borrowing on the First Borrowing Date:
(a) receipt by the Administrative Agent, to the extent requested by any
Bank not less than five Domestic Business Days prior to the First Borrowing
Date, of any Notes so requested duly executed by the Borrower;
(b) the fact that all fees and expenses payable on or before the First
Borrowing Date by the Borrower for the account of the Banks and their
affiliates in connection with this Agreement shall have been paid in full on
or before such date in the amounts previously agreed upon in writing;
(c) receipt by the Administrative Agent of opinions of (i) Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel for the Borrower and (ii)
Gary Lane, General Counsel-Corporate of the Borrower (or another counsel for
the Borrower reasonably satisfactory to the Administrative Agent)
substantially in the respective forms of Exhibits D-1 and D-2 hereto;
(d) receipt by the Administrative Agent of an opinion of Davis Polk &
Wardwell, special counsel for the Agents, substantially in the form of Exhibit
E hereto;
(e) receipt by the Lenders of the financial statements referred to in
Section 4.04(b);
(f) the fact that the Borrower shall have (i) terminated the
commitments of the banks under the Existing Credit Agreement, (ii) repaid in
full all loans (if any) outstanding thereunder and all interest (if any)
accrued thereon and (iii) paid all facility fees accrued thereunder to but not
including the date on which such commitments terminated;
(g) the fact that, immediately after giving effect to such
Borrowing and the application of the proceeds of the Loans included therein,
the Borrower shall be in compliance, on a pro forma basis, on the First
Borrowing Date with the provisions of subsection (b) of Section 5.07; and
(h) receipt by the Administrative Agent of all documents it may
reasonably request relating to the existence of the Borrower, the corporate
authority for and the validity of this Agreement and any other matters
relevant thereto, all in form and substance satisfactory to the Administrative
Agent.
Section 3.2. Acquisition Date. In the case of the Borrowing
on the Acquisition Date:
(a) receipt by the Administrative Agent of counterparts of the
Subsidiary Guarantee Agreement, duly executed by the Borrower and by each
Subsidiary of the Borrower which is a Significant Subsidiary as of the
Acquisition Date and, solely if a Release Event shall not have occurred prior
to the Acquisition Date, duly executed counterparts of each Pledge Agreement
together with certificates for the Pledged Stock (as defined in each Pledge
Agreement) and the Pledged Certificates (as defined in each Pledge Agreement);
(b) the fact that all material governmental and third party
approvals (including approvals under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 and other consents, but excluding STB approval)
necessary in connection with the Acquisition shall have been obtained and be
in full force and effect, and all applicable waiting periods shall have
expired without any action being taken by any governmental authority which has
restrained, prevented or otherwise imposed materially adverse conditions on
the Acquisition, and the Administrative Agent shall have received copies,
certified by the Secretary or an Assistant Secretary of the Borrower, of all
filings made with any governmental authority in connection with the
Acquisition which the Agent shall have requested;
(c) the fact that all fees and expenses payable on or before
the Acquisition Date by the Borrower for the account of the Banks and their
affiliates in connection with this Agreement shall have been paid in full on
or before such date in the amounts previously agreed upon in writing;
(d) receipt by the Administrative Agent of a certificate of
the chief executive officer or the chief financial officer of the Borrower
that the Second Offer has been consummated in accordance with the Second Offer
to Purchase, without, unless consented to in writing by the Required Banks,
waiver of any of the conditions thereof other than the financing condition;
(e) the fact that the Administrative Agent shall not have received
notice from the Required Banks that, in their reasonable determination, any of
the conditions of the Second Offer has not been fulfilled other than the
financing condition;
(f) receipt by the Administrative Agent of opinions of (i) Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel for the Borrower, (ii) Gary
Lane, General Counsel-Corporate of the Borrower (or another counsel for the
Borrower reasonably satisfactory to the Administrative Agent) and (iii)
Williams Kelly & Greer, special Virginia counsel to the Borrower,
substantially in the respective forms of Exhibits D-3, D-4 and D-5 hereto;
(g) the fact that, immediately after giving effect to such Borrowing and
the application of the proceeds of the Loans included therein, the Borrower
shall be in compliance, on a pro forma basis, on the Acquisition Date with the
provisions of each subsection of Section 5.07 (it being understood that with
respect to subsections (a) and (c) of such Section the Borrower shall be
required to be in compliance on the Acquisition Date with the ratio set forth
in each such subsection opposite the period in which the Acquisition Date
occurs);
(h) the fact that the Voting Trust Agreement shall have been executed
and delivered and shall be substantially in the form distributed to the Banks
prior to the date hereof; and
(i) receipt by the Administrative Agent of all documents it may
reasonably request relating to the existence of the Obligors, the corporate
authority for and the validity of this Loan Documents and any other matters
relevant thereto, all in form and substance satisfactory to the Administrative
Agent.
Section 3.3. Merger Date. In the case of the Borrowing on the
Merger Date:
(a) the fact that substantially simultaneously therewith, the
Merger shall be consummated and all capital stock of Conrail, after giving
effect thereto, shall be held by the Voting Trust (if the Merger Date occurs
prior to the STB Approval Date) or by the Borrower or a Significant Subsidiary
party to a Pledge Agreement (if the Merger Date occurs on or after the STB
Approval Date); and
(b) the fact that, immediately after giving effect to such
Borrowing and the application of the proceeds of the Loans included therein,
the Borrower shall be in compliance on a pro forma basis on the Merger Date
with the provisions of each subsection of Section 5.07 (it being understood
that with respect to subsections (a) and (c) of such Section the Borrower
shall be required to be in compliance on the Merger Date with the ratio set
forth in each such subsection opposite the period in which the Merger Date
occurs).
Section 3.4. Borrowings. The obligation of any Bank to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.02 or 2.03, as the case may be;
(b) in the case of a Revolving Credit Borrowing or a Money Market
Borrowing, the fact that, immediately after such Borrowing and application of
the proceeds thereof, the aggregate outstanding principal amount of the
Revolving Credit Loans and the Money Market Loans will not exceed the
aggregate amount of the Revolving Credit Commitments;
(c) in the case of a Revolving Credit Borrowing or a Money Market
Borrowing made prior to the Acquisition Date, the fact that, immediately after
such Borrowing and application of the proceeds thereof, the aggregate
outstanding principal amount of the Revolving Credit Loans and the Money
Market Loans will not exceed $1,650,000,000;
(d) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties of the
Borrower contained in each Loan Document shall be true in all material
respects on and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such Borrowing as to the facts specified in
clauses (b), (c), (d) and (e) of this Section.
Section 3.5. Waiver by Banks. In order to facilitate the
satisfaction of the condition set forth in Section 3.01(f) above, each of the
parties hereto which is a party to the Existing Credit Agreement waives (i)
the requirement in Section 2.09 thereof that a notice terminating the
commitments of the banks thereunder must be given at least three Domestic
Business Days prior to such termination, (ii) to the extent necessary, the
requirement in Section 2.11(a) thereof that a notice of prepayment of any Base
Rate Borrowing (as defined in the Existing Credit Agreement) must be given at
least one Domestic Business Day prior to such termination and (iii) to the
extent necessary, the prohibition in Section 2.11 thereof on the prepayment of
Fixed Rate Loans (as defined in the Existing Credit Agreement) prior to the
maturity thereof (subject to the obligations of the Borrower to pay to each
bank party to the Existing Credit Agreement all amounts payable by the
Borrower to such bank pursuant to Section 2.13 of the Existing Credit
Agreement as a result of any such prepayment).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants on the date hereof that:
Section 4.1. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of Virginia (or, if another corporation has become the Borrower as
permitted by Section 5.09, the laws of its jurisdiction of incorporation). The
Borrower has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted, except where the failure to have such licenses, authorizations,
consents and approvals could not be reasonably expected to result in a
Material Adverse Change.
Section 4.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of the
Loan Documents are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official (except
for (i) the filing of UCC-1 financing statements referred to in the Pledge
Agreement and (ii) filings with governmental agencies (x) which filings are
necessary or desirable in order for the Borrower to comply with disclosure
obligations under applicable laws or with Section 5.18 and (y) which filings,
if not made, would not have any effect on the validity or enforceability of
the Loan Documents and the obligations of the Borrower thereunder) and do not
contravene, or constitute a default under, any provision of law or regulation
applicable to the Borrower (including without limitation the Margin
Regulations) or of the articles of incorporation or by-laws of the Borrower,
or of any agreement under which Debt may be incurred or any other material
agreement, judgment, injunction, order, decree or other instrument binding
upon the Borrower or any of its Consolidated Subsidiaries or result in the
creation or imposition of any Lien (other than the Liens of the Pledge
Agreements) on any asset of the Borrower or any of its Consolidated
Subsidiaries.
Section 4.3. Binding Effect. This Agreement constitutes, and
when executed and delivered in accordance with this Agreement, each other Loan
Document will constitute, a valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time in effect and (ii)
equitable principles of general applicability.
Section 4.4. Financial Information.
(a) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 1995 and the related consolidated statements
of income, cash flows and changes in stockholders' equity for the fiscal year
then ended, reported on by KPMG Peat Marwick and set forth in the Borrower's
1995 Form 10-K, a copy of which has been delivered to each of the Banks,
fairly present, in conformity with generally accepted accounting principles,
the consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations,
cash flows and changes in stockholders' equity for such fiscal year.
(b) The unaudited pro forma condensed balance sheet of the Borrower and
Conrail as of December 31, 1996 set forth in the Information Memorandum has
been prepared on the basis described therein and otherwise in conformity with
generally accepted accounting principles applied on a basis consistent with
the financial statements referred to in subsection (a) of this Section and
shows the combined financial position of the Borrower and Conrail as if the
Consummation Date had occurred on December 31, 1996.
(c) Except as reflected in the pro forma condensed balance sheet
referred to in subsection (b) or elsewhere in the Information Memorandum,
since the respective dates as of which information is stated in the
Information Memorandum, there has been no material adverse change in the
consolidated financial condition, operations, assets, business or prospects of
the Borrower and its Consolidated Subsidiaries (including for this purpose
Conrail and its Consolidated Subsidiaries), taken as a whole (a "Material
Adverse Change").
Section 4.5. Litigation. There is no action, suit or
proceeding (including any rate-setting hearing) pending against, or to the
knowledge of the Borrower threatened against or affecting, the Borrower or any
of its Consolidated Subsidiaries before any court or arbitrator or any
governmental body, agency or official which could reasonably be expected to
result in a Material Adverse Change or which in any manner draws into question
the validity or enforceability of this Agreement or (prior to a Release Event)
the Collateral Documents.
Section 4.6. Compliance with Laws. (a) The Borrower and its
Consolidated Subsidiaries are in compliance in all material respects with all
applicable provisions of the United States Interstate Commerce Act, as
amended, and all regulations, orders, rulings and interpretations thereunder,
except where the failure to so comply could not reasonably be expected to
result in a Material Adverse Change.
(b) Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan and is in compliance in all material
respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan. No member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any material
contribution or payment due under any Multiemployer Plan in which more than
100 employees of members of the ERISA Group participate or under any Plan or
in respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, any of which has resulted in the imposition of a Lien
under Section 412(n) of the Internal Revenue Code or Section 302(f) of ERISA
or could reasonably be expected to result in the posting of a bond or other
security under Section 401(a)(29) of the Internal Revenue Code or Section 307
of ERISA or (iii) incurred any material liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 4.7. Environmental Matters. In the ordinary course of
its business, the Borrower reviews the effect of applicable Environmental Laws
on the business and operations and properties of the Borrower and its
Consolidated Subsidiaries, in the course of which it identifies and evaluates
actual and potential associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned or as a result of
accidents or occurrences involving property or employees of the Borrower and
its Consolidated Subsidiaries, any capital or operating expenditures required
to achieve or maintain compliance with environmental protection standards
imposed by law or as a condition of any license, permit or contract, any
related constraints on operating activities, including any periodic or
permanent shutdown of any facility, restriction on transportation of any
substance or reduction in the level of or change in the nature of operations
and any actual or potential liabilities to third parties, including employees,
and any related costs and expenses). On the basis of its review, the Borrower
has reasonably concluded that applicable Environmental Laws, as they relate to
matters known to the Borrower, cannot reasonably be expected to result in a
Material Adverse Change.
Section 4.8. Taxes. United States consolidated Federal income
tax returns of the Borrower and its Subsidiaries as of the First Borrowing
Date have been examined and revenue agent reports have been received for all
years up to and including the fiscal year ended December 31, 1992. United
States consolidated Federal income tax returns of (i) Norfolk and Western
Railway Company and its consolidated subsidiaries have been examined and
revenue agent reports have been received through the fiscal year ended
December 31, 1981 and (ii) Southern Railway Company and its consolidated
subsidiaries have been examined and closed through the fiscal year ended May
31, 1982. The Borrower and its Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns which are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Borrower or any
Subsidiary or are contesting such assessment in good faith by appropriate
proceedings, except where the failure to so pay or file could not be
reasonably expected to result in a Material Adverse Change. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate.
Section 4.9. Significant Subsidiaries. (a) Each of the
Borrower's Significant Subsidiaries is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, franchises, consents and approvals required to carry
on its business as now conducted, except where the failure to have such
licenses, authorizations, franchises, consents and approvals could not be
reasonably expected to result in a Material Adverse Change.
(b) As of the date hereof the Borrower owns, and as of the Acquisition
Date the Borrower will own, directly or indirectly, all of the shares of
capital stock or other ownership interests of Norfolk Southern Railway Company
(or the successor thereto by merger, consolidation or share exchange or the
Person, if any, who has acquired substantially all of such corporation's
assets) except (i) directors' qualifying shares and (ii) not more than
1,100,000 shares of such corporation's $2.60 Cumulative Preferred Stock,
Series A. As of the date hereof the Borrower owns, and as of the Acquisition
Date the Borrower will own, directly or indirectly, all of the shares of
capital stock or other ownership interests of Norfolk and Western Railway
Company (or the successor thereto by merger, consolidation or share exchange
or the Person, if any, who has acquired substantially all of such
corporation's assets) except directors' qualifying shares.
Section 4.10. Not an Investment Company or a Holding Company.
The Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. The Borrower is not a "holding
company", a "subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
Section 4.11. Full Disclosure. All written information, taken
as a whole, heretofore furnished by the Borrower to any Agent or Bank for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Borrower to the Administrative Agent or Bank will be, true and accurate in all
material respects on the date as of which such information is stated or
certified, it being understood that any such representation and warranty as to
the accuracy of information in respect of Conrail and its Subsidiaries with
respect to any period ending, or at any time, prior to the Consummation Date
is limited to the Borrower's having no actual knowledge that such information
is not accurate. The Borrower has disclosed to the Banks or to the
Administrative Agent for circulation to the Banks pursuant to Section 5.01 in
writing any and all facts known to the Borrower which materially and adversely
affect the business, operations or financial condition of the Borrower and its
Consolidated Subsidiaries, taken as a whole, or the ability of the Borrower to
perform its obligations under this Agreement.
Section 4.12. Representations in Other Loan Documents True and
Correct. Each of the representations and warranties of each Obligor contained
in the other Loan Documents is true and correct in all material respects.
Section 4.13. Ownership of Property, Liens. The Borrower and
its Subsidiaries have good and marketable title (subject only to Liens
permitted by the Loan Documents) to or have valid leasehold interests in, and
are in lawful possession of, or, in the case of intellectual property, have
valid rights to use, all material properties and other material assets (real or
personal, tangible, intangible or mixed) necessary for the continued operation
of their businesses, taken as a whole.
Section 4.14. No Default. No Default has occurred and is
continuing and neither the Borrower nor any of its Subsidiaries is in default
under or with respect to any material contract, agreement, lease or other
instrument to which it is a party or by which its property is bound or
affected where such default could reasonably be expected to result in a
Material Adverse Change.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any principal of or interest on any Loan remains
unpaid:
Section 5.1. Information. The Borrower will deliver to the
Administrative Agent for circulation to each of the Banks:
(a) promptly after they are publicly available, and in any event
within 105 days after the end of each fiscal year of the Borrower, (i) a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such fiscal year and the related consolidated statements of
income, cash flows and changes in stockholders' equity for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on in accordance with regulations of the Securities
and Exchange Commission by KPMG Peat Marwick or other independent public
accountants of nationally recognized standing, (ii) solely if such fiscal year
ended on or prior to the Consummation Date, a pro forma condensed balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and the related pro forma condensed statements of income, cash
flows and changes in stockholders' equity for such fiscal year, prepared in
each case on the basis of the assumption that Conrail is a wholly-owned
Consolidated Subsidiary of the Borrower at the end of such fiscal year and at
all times during such fiscal year and setting forth in each case in
comparative form the figures for the previous fiscal year and certified in
each case by the chief financial officer or the chief accounting officer of
the Borrower as to having been prepared on a basis consistent with the pro
forma financial information in the Information Memorandum and (iii) solely if
such fiscal year ended on or prior to the Consummation Date, a consolidated
balance sheet of Conrail and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated statements of income, cash flows
and changes in stockholders' equity for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year;
(b) promptly after they are publicly available, and in any event
within 60 days after the end of each of the first three quarters of each
fiscal year of the Borrower, (x) (i) a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such quarter,
setting forth in comparative form the figures at the end of the Borrower's
previous fiscal year, (ii) the related consolidated statement of income for
such quarter and for the portion of the Borrower's fiscal year ended at the
end of such quarter, setting forth in comparative form the figures for the
corresponding quarter and the corresponding portion of the Borrower's previous
fiscal year, and (iii) the related consolidated statement of cash flows for
the portion of the Borrower's fiscal year ended at the end of such quarter,
setting forth in comparative form the figures for the corresponding portion of
the Borrower's previous fiscal year, and (y) solely if such fiscal quarter
ended on or prior to the Consummation Date, (A) (i) a pro forma condensed
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such quarter, setting forth in comparative form the figures at the end of
the Borrower's previous fiscal year, (ii) the related pro forma condensed
statement of income for such quarter and for the portion of the Borrower's
fiscal year ended at the end of such quarter, setting forth in comparative
form the figures for the corresponding quarter and the corresponding portion
of the Borrower's previous fiscal year, and (iii) the related pro forma
condensed statement of cash flows for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in comparative form the
figures for the corresponding portion of the Borrower's previous fiscal year
and prepared in each case on the basis of the assumption that Conrail is a
wholly-owned Consolidated Subsidiary of the Borrower at the end of such fiscal
quarter and at all times during the portion of such fiscal year ended on the
last day of such fiscal quarter and (B)(i) a consolidated balance sheet of
Conrail and its Consolidated Subsidiaries as of the end of such quarter,
setting forth in comparative form the figures at the end of Conrail's previous
fiscal year, (ii) the related consolidated statement of income for such
quarter and for the portion of Conrail's fiscal year ended at the end of such
quarter, setting forth in comparative form the figures for the corresponding
quarter and the corresponding portion of Conrail's previous fiscal year, and
(iii) the related consolidated statement of cash flows for the portion of
Conrail's fiscal year ended at the end of such quarter, setting forth in
comparative form the figures for the corresponding portion of Conrail's
previous fiscal year, certified by the chief financial officer or the chief
accounting officer of the Borrower (m) in the case of information delivered
by the Borrower pursuant to clause (x) of this subsection (b) (subject to
normal year-end adjustments) as to fairness of presentation, generally
accepted accounting principles and consistency (except for changes in
generally accepted accounting principles concurred in by the Borrower's
independent public accountants) and (n) in the case of information delivered
by the Borrower pursuant to clause (y)(A) of this subsection (b), as to having
been prepared on a basis consistent with the pro forma financial information
in the Information Memorandum;
(c) simultaneously with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of the chief financial
officer, the chief accounting officer, treasurer or any assistant treasurer of
the Borrower (i) setting forth in reasonable detail the calculations required
to establish whether the Borrower was in compliance with the requirements of
Section 5.07 on the date of such financial statements and (ii) stating whether
any Default exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) within ten days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate of
the chief financial officer or the chief accounting officer of the Borrower
setting forth the details thereof and the action which the Borrower is taking
or proposes to take with respect thereto;
(e) promptly after the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly after the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(g) if and within ten days after the date any member of the ERISA
Group (i) gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan which
could reasonably be expected to constitute grounds for a termination of such
Plan under Title IV of ERISA or knows that the plan administrator of any Plan
has given or is required to give notice of any such reportable event, in each
case which could, when considered together with all other such reportable
events which have occurred after the date hereof, reasonably be expected to
give rise in the aggregate to a liability of members of the ERISA Group in
excess of $50,000,000, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan in which more than 100 employees of members of the ERISA Group
participate is in reorganization, is insolvent or has been terminated, a copy
of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a
copy of such notice; (iv) applies for a waiver of the minimum funding standard
under Section 412 of the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under Section 4041(c) of
ERISA, a copy of such notice and other information filed with the PBGC; (vi)
gives notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice; or (vii) fails to make any payment or contribution due
under any Multiemployer Plan in which more than 100 employees of members of
the ERISA Group participate or any Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement, any of
which has resulted in the imposition of a Lien under Section 412(n) of the
Internal Revenue Code or Section 302(f) of ERISA or could reasonably be
expected to result in the posting of a bond or other security under Section
401(a)(29) of the Internal Revenue Code or Section 307 of ERISA, a certificate
of the chief financial officer or the chief accounting officer of the Borrower
setting forth details as to such occurrence and action, if any, which the
Borrower or applicable member of the ERISA Group is required or proposes to
take;
(h) as soon as reasonably practicable after any officer of the
Borrower obtains knowledge of the commencement of, or of a threat of the
commencement of, any actions, suits or proceedings against the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official which could reasonably be expected to result in a Material
Adverse Change or which in any manner questions the validity or enforceability
of the Loan Documents, a certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth the nature of such
pending or threatened action, suit or proceeding and such additional
information with respect thereto as may be reasonably requested by any Bank;
and
(i) from time to time such additional publicly available
information regarding the financial position or business of the Borrower and
its Consolidated Subsidiaries as any Bank through the Administrative Agent may
reasonably request.
Section 5.2. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each Consolidated
Subsidiary to keep, all property deemed by the Borrower to be useful and
necessary to its business in such order and condition as the Borrower shall
consider prudent.
(b) The Borrower will maintain purchased insurance and self-
insurance consistent with prudent industry and financial practice, covering
(without limitation) the risk of (i) physical damage to real and personal
property of the Borrower and each of its Subsidiaries on an all risks basis
and (ii) public liability of the Borrower and each of its Subsidiaries.
The Borrower will maintain sufficient purchased insurance to prevent a
material increase in the Leverage Ratio as a result of a property or
casualty loss or as a result of the imposition of any reasonably
foreseeable liability.
Section 5.3. Conduct of Business and Maintenance of
Existence. The Borrower will preserve, renew and keep in full force and
effect its corporate existence, except as permitted by Section 5.09, and
its rights, privileges and franchises reasonably deemed by the Borrower to
be necessary or desirable in the normal conduct of business, except where
the failure to maintain such rights, privileges and franchises could not be
reasonably expected to result in a Material Adverse Change. The Borrower
will cause each of its Significant Subsidiaries to continue to engage in
business of the same general type as now conducted by it, and will cause
each of them to preserve, renew and keep in full force and effect their
respective corporate existence and their respective rights, privileges and
franchises reasonably deemed by the Borrower to be necessary or desirable
in the normal conduct of business, except where the failure to maintain
such rights, privileges and franchises could not be reasonably expected to
result in a Material Adverse Change. Nothing in this Section 5.03 shall
prohibit a merger, consolidation or share exchange pursuant to which any
two corporations shall be combined into a single corporation or the
acquisition by any corporation of substantially all of the assets of
another corporation.
Section 5.4. Compliance with Laws. The Borrower will comply,
and cause each Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, the Interstate
Commerce Act, Environmental Laws and ERISA and the rules and regulations
thereunder) except where the necessity of compliance therewith is contested in
good faith by appropriate proceedings or where such failure could not be
reasonably expected to result in a Material Adverse Change.
Section 5.5. Payment of Obligations. The Borrower will pay
and discharge, and will cause each Significant Subsidiary to pay and
discharge, at or before maturity, all their respective material obligations
and liabilities (including, without limitation, tax liabilities and claims of
materialmen, warehousemen and the like which if unpaid would by law give rise
to a Lien not permitted by this Agreement), except where the same may be
contested in good faith by appropriate proceedings or could not be reasonably
expected to result in a Material Adverse Change, and will maintain, and will
cause each Significant Subsidiary to maintain, in accordance with generally
accepted accounting principles, appropriate reserves for the accrual of any of
the same.
Section 5.6. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Significant Subsidiary to keep, proper
books of record and account in which full, true and correct entries shall be
made of all transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives designated
in writing by any Bank at such Bank's expense, and subject to such limitations
as the Borrower may reasonably impose to insure safety or compliance with any
applicable legal or contractual restrictions, to visit and inspect any of
their respective properties, to examine and make abstracts from any of their
corporate books and financial records and to discuss their respective affairs,
finances and accounts with their respective principal officers, all at such
reasonable times during normal business hours, after reasonable prior notice
and as often as may reasonably be desired.
Section 5.7. Financial Covenants. (a) Interest Coverage
Ratio. As of the last day of each fiscal quarter of the Borrower ended on or
after the Acquisition Date and ending during each period set forth below, the
Interest Coverage Ratio will not be less than the ratio set forth below
opposite such period:
Period Ratio
3/31/97-6/29/98 1.45
6/30/98-12/30/98 1.70
12/31/98-12/30/99 1.95
12/31/99-12/30/00 2.35
12/31/00-12/30/01 2.85
Thereafter 3.40
(b) Minimum Consolidated Net Worth. At the last day of any fiscal
quarter ended on or after the First Borrowing Date, Consolidated Net Worth of
the Borrower plus the Net Worth Add Back, in each case at such date, will not
be less than an amount equal to the sum of (i) $4,000,000,000 plus (ii) an
amount equal to 50% of Adjusted Consolidated Net Income for each fiscal
quarter of the Borrower commencing on or after the First Borrowing Date and
ending on or prior to the date of determination, in each case, for which
Adjusted Consolidated Net Income is positive (but with no deduction on account
of negative Adjusted Consolidated Net Income for any fiscal quarter of the
Borrower) plus (iii) 100% of the aggregate net proceeds, including the fair
market value of property other than cash (as determined in good faith by the
Board of Directors of the Borrower), received by the Borrower from the
issuance and sale after the First Borrowing Date of any capital stock of the
Borrower (other than the proceeds of any issuance and sale of any capital
stock (w) to a Subsidiary of the Borrower, (x) to directors as qualifying
shares, (y) in the ordinary course of business in connection with now or
hereafter existing employee stock purchase plans and other employee
compensation arrangements or (z) which is required to be redeemed, or is
redeemable at the option of the holder, at any time) or in connection with the
conversion or exchange of any Debt of the Borrower into capital stock of the
Borrower after the date hereof. For purposes of this subsection (b), the
following terms have the following meanings:
"Net Worth Add Back" means, at any date, an amount equal to the
lesser of (A) $600,000,000 and (B) the aggregate amount of Adjustment Amounts
for all fiscal quarters of the Borrower commencing on or after the First
Borrowing Date and ending on or prior to the date of determination.
"Adjustment Amount" means, for any fiscal quarter, an amount
equal to the absolute amount by which Consolidated Net Income for such quarter
was reduced by reason of special charges taken by the Borrower and its
Consolidated Subsidiaries in connection with the Acquisition and the Initial
Conrail Investment.
"Adjusted Consolidated Net Income" means, for any fiscal
quarter, an amount equal to Consolidated Net Income for such fiscal quarter
plus the Adjustment Amount, if any, for such fiscal quarter; provided that the
aggregate amount of the Adjustment Amounts added to Consolidated Net Income
for purposes of such computations hereunder shall not exceed $600,000,000.
(c) Leverage Ratio. The Leverage Ratio will not exceed, at any time on
or after the Acquisition Date during any period set forth below, the
applicable ratio set forth below for such period:
Period Ratio
------ -----
3/31/97-6/29/98 5.50
6/30/98-12/30/98 5.10
12/31/98-12/30/99 4.75
12/31/99-12/30/00 4.00
12/31/00-12/30/01 3.30
12/31/01-12/30/02 2.75
Thereafter 2.35
Section 5.8. Negative Pledge. The Borrower will not create,
assume or suffer to exist any Lien on any Investment in a Subsidiary now
directly owned or hereafter directly acquired by the Borrower, except Liens
created by the Collateral Documents and Liens described in clause (i) below.
Neither the Borrower nor any Subsidiary will create, assume or suffer to exist
any Lien on any other asset now owned or hereafter acquired by it except:
(a) Liens created by the Collateral Documents;
(b) Liens existing on the date of this Agreement that have attached (or
that hereafter attach, pursuant to agreements in effect on the date hereof, to
assets not owned by Persons subject to such agreements on the date hereof)
securing Debt in an aggregate principal amount not exceeding $900,000,000;
(c) any Lien existing on any asset of any Person at the time such Person
becomes a Subsidiary and not created in contemplation of such event;
(d) any Lien (created pursuant to an equipment trust agreement,
conditional sale agreement, chattel mortgage or lease or otherwise) on any
asset securing Debt incurred or assumed for the purpose of financing all or
any part of the cost of acquiring, constructing or rebuilding such asset;
(e) any Lien on any asset of any Person existing at the time such Person
is merged or consolidated with or into the Borrower or a Subsidiary and not
created in contemplation of such event;
(f) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(g) Liens created, assumed or existing on assets associated with real
estate development projects or development joint ventures;
(h) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(i) inchoate tax Liens;
(j) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure any obligation
in an amount exceeding $600,000,000 and (iii) do not in the aggregate
materially detract from the value of its material assets or materially impair
the use thereof in the operation of its business;
(k) Liens on "margin stock" (as defined in the Margin Regulations), if
and to the extent that the value of such margin stock exceeds 25% of the total
assets of the Borrower and its Subsidiaries subject to this Section; and
(l) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal amount at any time outstanding
not in excess of $600,000,000.
Section 5.9. Consolidations, Mergers and Sales of Assets. (a)
The Borrower will not (i) consolidate or merge with or into any other Person
or (ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of its assets to any other Person; provided that the
Borrower may merge or consolidate with another Person or sell all or
substantially all of its assets to another Person if:
(A) the Person surviving such merger or consolidation, or
the Person that acquires substantially all of the Borrower's assets, is a
business corporation incorporated under the laws of a State of the United
States of America;
(B) the Person surviving such merger or consolidation, if not
the Borrower, or the Person that acquires substantially all of the
Borrower's assets, (i) executes and delivers to the Administrative Agent
and each of the Banks an instrument in form reasonably satisfactory to the
Administrative Agent pursuant to which such Person assumes all of the
Borrower's obligations under the Loan Documents as theretofore amended or
modified, including the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest
on each Loan made to the Borrower pursuant to this Agreement, the full and
punctual payment of all other amounts payable hereunder and the performance
of all of the other covenants and agreements contained herein and (ii) if
requested by the Required Banks, delivers an opinion of counsel
satisfactory to the Required Banks covering the matters set forth in
Exhibits D-1 through D-5, in each case after giving effect to such merger,
consolidation or sale of assets, as the case may be; and
(C) immediately after giving effect to such merger,
consolidation or sale of assets, no Default shall have occurred and be
continuing and the representations and warranties of the Borrower contained in
this Agreement shall be true in all material respects as if made immediately
after such merger, consolidation or sale of assets.
It is understood that: (i) the reference in Section 4.04(c)
to changes in respect of the Borrower and its Consolidated Subsidiaries
refers to changes from the business and consolidated financial position of
Norfolk Southern Corporation and its Consolidated Subsidiaries at such
date, including changes that occur as a result of another Person becoming
the Borrower pursuant to such a merger, consolidation or sale of assets and
(ii) the references in Section 6.01(l) to individuals who were directors of
the Borrower at any time before such a merger, consolidation or sale of
assets refers only to individuals who were directors of the Person who was
the Borrower at that time. No Person who was the Borrower shall be
released from any of its obligations hereunder upon the assumption of such
obligations by another Person. For purposes of this Section, the term
"consolidate with" means a transaction in which the Borrower and another
corporation consolidate to form a new corporation pursuant to the laws of
their jurisdictions of incorporation and in which the Borrower and such
other corporation cease to exist as separate corporate entities.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, make any Asset Sale (i) unless the consideration therefor is not less than
the fair market value of the related asset (as determined in good faith by the
chief financial officer of the Borrower) and (ii) unless, after giving effect
thereto, (a) the aggregate fair market value of the assets disposed of in all
Asset Sales (other than Acquisition Asset Sales) (1) during any fiscal year of
the Borrower ended after the Closing Date would not exceed $350,000,000 and
(2) from and after the Closing Date would not exceed $1,000,000,000 and (b)
the aggregate fair market value of the assets disposed of in all Acquisition
Asset Sales from and after the Closing Date would not exceed $1,500,000,000;
provided that (x) the consideration for any Asset Sale shall consist solely of
(A) cash payable at closing or (B) instruments obligating the purchaser (or
an affiliate) to make cash payments at a subsequent date, in an aggregate
amount not to exceed 50% of the purchase price with respect to such Asset Sale
and (y) the aggregate principal amount of instruments described in clause (x)
(B) of this proviso at any one time held by the Borrower and its Subsidiaries
will not exceed $200,000,000 with respect to all Asset Sales (other than
Acquisition Asset Sales) and will not exceed $0 with respect to all
Acquisition Asset Sales. For purposes of this subsection, "Acquisition Asset
Sale" means any Asset Sale (i) the consummation of which is an express
condition (either precedent or subsequent) to the approval by the STB of the
direct or indirect acquisition of control of Conrail by the Borrower or (ii)
which is consummated in connection with, or as a condition precedent to, the
consummation of a merger or other business combination between the Borrower or
any of its Subsidiaries and Conrail (including without limitation the Merger).
Section 5.10. Use of Proceeds. The proceeds of the Term
Loans will be used by the Borrower to finance the Acquisition, to pay related
fees and expenses and, at the option of the Borrower, to refinance Debt of the
Borrower or any Subsidiary incurred in reliance on Section 5.11(i), Revolving
Credit Loans or Money Market Loans outstanding on the Acquisition Date. The
proceeds of the Revolving Credit Loans and Money Market Loans made prior to the
Acquisition Date will be used by the Borrower to make the Initial Conrail
Investment, to refinance a portion of the existing bank debt of the Borrower
(including the Existing Credit Agreement), and for other general corporate
purposes and may be used by the Borrower to repay maturing commercial paper.
The proceeds of the Revolving Credit Loans and Money Market Loans made on or
after the Acquisition Date will be used by the Borrower to finance the
Acquisition, to pay related fees and expenses, and for other general corporate
purposes (including without limitation, at the option of the Borrower, to
refinance Debt of the Borrower or any Subsidiary incurred in reliance on
Section 5.11(i), Revolving Credit Loans or Money Market Loans outstanding on
the Acquisition Date).
Section 5.11. Limitation on Debt. The Borrower will not, and
will not permit any of its Subsidiaries to, incur or at any time be liable
with respect to any Debt except:
(a) Debt under the Loan Documents;
(b) Debt owing to the Borrower or a Subsidiary all of the outstanding
common stock of which (other than directors' qualifying shares) is owned
directly or indirectly by the Borrower;
(c) Debt of Subsidiaries not otherwise permitted by this Section in an
aggregate principal amount at any time outstanding not exceeding $500,000,000;
(d) Debt of the Borrower (and not of any Subsidiary) not
otherwise permitted by this Section in an aggregate principal amount at any
time outstanding not exceeding $100,000,000;
(e) Guarantees (i) by the Borrower of the Debt of a Subsidiary,
(ii) by any Significant Subsidiary of Debt of the Borrower and (iii) by any
Subsidiary of Debt of its own Subsidiaries, provided that the Guaranteed Debt
is permitted under this Section;
(f) Debt of any Person at the time such Person becomes a Subsidiary and
not incurred in contemplation of such event;
(g) Debt of the Borrower or a Subsidiary in existence on the Closing
Date and extensions, renewals and refinancings thereof (it being understood
that any Debt under the Existing Credit Agreement shall be refinanced on the
First Borrowing Date solely with Loans);
(h) Debt of Subsidiaries incurred or assumed (in connection with an
equipment trust agreement, conditional sale agreement, chattel mortgage or
lease or otherwise) for the purpose of directly or indirectly financing all or
any part of the cost of acquiring, constructing or rebuilding any asset and
any renewal, extension or refinancing thereof; provided that the aggregate
principal amount of such Debt (other than extensions, renewals and
refinancings) incurred or assumed in any fiscal year of the Borrower pursuant
to this clause (h) shall not exceed $350,000,000;
(i) short-term Debt of the Borrower (and not of any Subsidiary)
evidenced by commercial paper or similar instruments; and
(j) Debt of the Borrower (and not of any Subsidiary) which matures not
earlier than six months after the final maturity date of the Term Loans.
Section 5.12. Transactions with Affiliates. The Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, pay any
funds to or for the account of, make any Investment in, lease, sell, transfer
or otherwise dispose of any assets, tangible or intangible, to, or participate
in, or effect, any transaction with, any Affiliate except on an arm's-length
basis on terms no less favorable in any material respect to the Borrower or
such Subsidiary than could have been obtained from a third party who was not
an Affiliate; provided that the foregoing provisions of this Section shall not
prohibit (i) the declaration or payment of any lawful dividend or other
payment ratably in respect of all of its capital stock of the relevant class
or (ii) transactions entered into in the ordinary course of business with
joint ventures in which the Borrower has a direct or indirect interest to the
extent the Borrower has determined in its reasonable judgment that the
business purpose achieved by such transactions renders the terms thereof
reasonable.
Section 5.13. No Modification of the Voting Trust Agreement
Without Bank Consent. The Borrower will not, and will not permit any of its
Subsidiaries to, consent to or solicit any amendment or supplement to, or any
waiver or other modification of, the Voting Trust Agreement in any manner
which could reasonably be expected to materially adversely affect the rights
of the Banks under the Loan Documents or their ability to enforce the same.
Section 5.14. Limitation on Restrictions Affecting
Subsidiaries. Neither the Borrower nor any of its Subsidiaries will enter
into, or suffer to exist, any agreement with any Person, other than the Loan
Documents, which prohibits or limits the ability of any Subsidiary to (a) pay
dividends or make other distributions or pay any Debt owed to the Borrower or
any Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary,
(c) transfer any of its properties or assets to Borrower or any Subsidiary or
(d) create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired as
security for the obligations of the Borrower under the Loan Documents;
provided that the foregoing shall not apply to (i) restrictions in effect on
the date of this Agreement contained in agreements governing Debt outstanding
on the date of this Agreement (or in the case of Debt of a Person which
hereafter becomes a Subsidiary, outstanding on the date such Person becomes
a Subsidiary and not created in contemplation of that event) and, if such Debt
is renewed, extended or refinanced, restrictions in the agreements governing
the renewed, extended or refinancing Debt (and successive renewals, extensions
and refinancings thereof) if such restrictions are no more restrictive in any
material respect than those contained in the agreements governing the Debt
being renewed, extended or refinanced, (ii) restrictions contained in
agreements governing Debt incurred pursuant to Section 5.11(c), (d), (e) and
(j) provided that such restrictions are no more restrictive in any material
respect than those contained in the Loan Documents, (iii) customary
non-assignment provisions in leases, licenses and other contracts, (iv)
restrictions contained in agreements governing Debt incurred by special
purpose Subsidiaries in connection with the financing of equipment and other
asset acquisitions, provided that such restrictions only apply to such special
purpose Subsidiaries and their respective assets, (v) in the case of
non-wholly-owned Subsidiaries, customary restrictions contained in joint
venture or similar agreements, (vi) restrictions required by applicable law
and (vii) restrictions in agreements establishing consensual Liens permitted
under Section 5.08 with respect to the assets subject to such Liens.
Section 5.15. Fiscal Year. The Borrower will not change its
fiscal year from a fiscal year ending December 31.
Section 5.16. Hedging Facilities. The Borrower will, at its
sole cost and expense not later than 60 days following the Acquisition Date,
enter into and thereafter maintain in full force and effect interest rate cap
or swap agreements or similar agreements on such terms as shall be reasonably
acceptable to the Administrative Agent and that shall result in the interest
rate payable on not less than (i) at any time prior to the Consummation Date,
30% of Total Debt at such time and (ii) at any time on and after the
Consummation Date, 40% of Total Debt at such time, being effectively (or in
fact) fixed.
Section 5.17. Restricted Investments. The Borrower will not,
and will not permit any Subsidiary to, make any Restricted Investments prior
to the Consummation Date.
Section 5.18. Consummation. The Borrower will use its
commercially reasonable best efforts to cause the Consummation Date to occur
at the earliest practicable time.
Section 5.19. Additional Guarantors. The Borrower will
cause each Person which becomes a Significant Subsidiary after the Acquisition
Date to become a Subsidiary Guarantor as promptly as practicable after (but in
any event within 30 days of) the date it becomes a Significant Subsidiary.
ARTICLE 6
DEFAULT
Section 6.1. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) the Borrower shall default in the payment when due of any
principal of any Loan, or shall default in the payment, within five days of
the due date thereof, of any interest, fees or other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.19, inclusive;
(c) any Obligor shall fail to observe or perform any covenant or
agreement contained in any Loan Document (other than those covered by clause
(a) or (b) above) for 10 Domestic Business Days after written notice thereof
has been given to the Borrower by the Administrative Agent at the request of
any Bank;
(d) any representation, warranty or certification made (or deemed
made) by any Obligor in any Loan Document or in any certificate, financial
statement or other document delivered pursuant to any Loan Document shall
prove to have been incorrect in any material respect when made (or deemed
made);
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of any Material Debt when due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables the holder of
such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(g) the Borrower or any Significant Subsidiary (including for
purposes of this subsection Conrail and, to the extent they would meet the
criteria specified in the definition of Significant Subsidiary, its
Subsidiaries) shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Significant Subsidiary (including for purposes of
this subsection Conrail and, to the extent they would meet the criteria
specified in the definition of Significant Subsidiary, its Subsidiaries)
seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief shall
be entered against the Borrower or any Significant Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $50,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate
a Material Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which, in any such case, could reasonably be expected to
cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $100,000,000;
(j) a judgment or order for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower or any Significant
Subsidiary and such judgment or order shall continue unsatisfied, unreversed,
unvacated, undischarged and unstayed for a period of 30 days;
(k) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by
the Securities and Exchange Commission under said Act) of 30% or more of the
outstanding shares of common stock of the Borrower;
(l) at any time Continuing Directors shall not constitute a
majority of the board of directors of the Borrower ("Continuing Director"
means at any time each (i) individual who was a director of the Borrower 24
months before such time or (ii) individuals who were nominated or elected to
be a director of the Borrower by at least two-thirds of the Continuing
Directors at the time of such nomination or election);
(m) any Lien created by any of the Collateral Documents shall at
any time fail to constitute a valid and (to the extent required by the
Collateral Documents) perfected Lien on any material portion of the Collateral
purported to be subject thereto, securing the obligations purported to be
secured thereby, with the priority required by the Loan Documents, or any
Obligor shall so assert in writing;
(n) the Guarantee of any Subsidiary Guarantor under the Subsidiary
Guarantee Agreement shall be invalid or unenforceable, or any Obligor shall so
assert in writing; or
(o) for any calendar quarter commencing after the Acquisition
Date (or if the record date with respect to Conrail dividends or distributions
payable during the first such quarter shall have been prior to the Acquisition
Date, for any calendar quarter after the first such quarter) the aggregate
amount of dividends or distributions received by the Borrower in respect of
shares of capital stock of Conrail (either directly, through a dividend or
distribution made by the trustee under the Voting Trust or through a dividend
or distribution made by the Offeror to the Borrower with respect to a dividend
or distribution made by the trustee under the Voting Trust to the Offeror or
otherwise ) shall be less than $0.40375 per share;
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks by notice to the Borrower terminate the Commitments and
they shall thereupon terminate, and (ii) if requested by the Required Banks,
by notice to the Borrower declare the Loans (together with accrued interest
thereon) to be, and the Loans (together with accrued interest thereon) shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the Events of Default specified
in clause (g) or (h) above with respect to any Obligor, without any notice to
any Obligor or any other act by the Administrative Agent or the Banks, the
Commitments shall thereupon terminate and the Loans (together with accrued
interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
Section 6.2. Notice of Default. The Administrative Agent
shall give notice to the Borrower under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
ARTICLE 7
THE AGENT
Section 7.1. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof,
together with all such powers as are reasonably incidental thereto.
Section 7.2. Agents and Affiliates. Morgan Guaranty Trust
Company of New York and Merrill Lynch Capital Corporation shall have the same
rights and powers under the Loan Documents as any other Bank and may exercise
or refrain from exercising the same as though it were not an Agent, and Morgan
Guaranty Trust Company of New York and Merrill Lynch Capital Corporation and
their respective affiliates may engage in any kind of business with the
Borrower or any Subsidiary or affiliate of the Borrower as if each of them
were not an Agent hereunder.
Section 7.3. Action by Administrative Agent. The obligations
of the Administrative Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing, the Administrative
Agent shall not be required to take any action with respect to any Default,
except as expressly provided in the Loan Documents.
Section 7.4. Consultation with Experts. The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
Section 7.5. Liability of Agents. Neither Agent nor any of
their respective affiliates nor any of the respective directors, officers,
agents or employees of the foregoing shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request
of the Required Banks or (ii) in the absence of its own gross negligence or
willful misconduct. Neither Agent nor any of their respective affiliates nor
any of the respective directors, officers, agents or employees of the
foregoing shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection
with this Agreement or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any Obligor; (iii) the
satisfaction of any condition specified in Article 3, except, in the case of
the Administrative Agent, receipt of items required to be delivered to it; or
(iv) the validity, effectiveness or genuineness of any Loan Document or any
other instrument or writing furnished in connection therewith. The
Administrative Agent shall not incur any liability by acting in reliance upon
any notice, consent, certificate, statement, or other writing (which may be a
bank wire, telex or similar writing) believed by it to be genuine or to be
signed by the proper party or parties.
Section 7.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify each Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitee's gross negligence or willful
misconduct) that such indemnitee may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitee hereunder.
Section 7.7. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon any Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent
or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
Section 7.8. Successor Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Banks and the
Borrower. Upon any such resignation, the Required Banks shall have the right
to appoint a successor Administrative Agent reasonably acceptable to the
Borrower. If no successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a successor Administrative Agent,
which shall be a commercial bank organized or licensed under the laws of the
United States of America or of any State thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of its appointment
as Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation hereunder as Administrative
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent.
Section 7.9. Agents' Fees. The Borrower shall pay to each
Agent for its own account fees in the amounts and at the times previously
agreed upon between the Borrower and the Agents.
ARTICLE 8
CHANGE IN CIRCUMSTANCE
Section 8.1. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period for any
Fixed Rate Loan:
(a) the Administrative Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts) are not being offered to
the Reference Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or
more of the aggregate amount of the Commitments advise the Administrative
Agent that the Adjusted CD Rate or the London Interbank Offered Rate, as
the case may be, as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding their CD
Loans or Euro-Dollar Loans, as the case may be, for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Banks, whereupon until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist (which
notice the Administrative Agent shall deliver forthwith upon its becoming
aware thereof), (i) the obligations of the Banks to make CD Loans or
Euro-Dollar Loans, as the case may be, or to continue or convert outstanding
Loans as or into CD Loans or Euro-Dollar Loans, as the case may be, shall be
suspended and (ii) each outstanding CD Loan or Euro-Dollar Loan, as the case
may be, shall be converted into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto. Unless the Borrower notifies the
Administrative Agent at least two Domestic Business Days before the date of
any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding
the last day of the Interest Period applicable thereto at the Base Rate for
such day.
Section 8.2. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Euro-Dollar Lending Office) with
any request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain
or fund its Euro-Dollar Loans and such Bank shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank notifies the Borrower
and the Administrative Agent that the circumstances giving rise to such
suspension no longer exist (which notice such Bank shall give forthwith upon
its becoming aware thereof), the obligation of such Bank to make Euro-Dollar
Loans, or to convert outstanding Loans into Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Administrative Agent pursuant to
this Section, such Bank shall designate a different Euro-Dollar Lending Office
if such designation will avoid the need for giving such notice and will not,
in the judgment of such Bank, be otherwise disadvantageous to such Bank. If
such notice is given, each Euro-Dollar Loan of such Bank then outstanding
shall be converted to a Base Rate Loan either (a) on the last day of the then
current Interest Period applicable to such Euro-Dollar Loan if such Bank may
lawfully continue to maintain and fund such Loan to such day or (b)
immediately if such Bank shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
Section 8.3. Increased Cost and Reduced Return. (a) If on
or after (x) the date hereof, in the case of any Committed Loan or any
obligation to make Committed Loans or (y) the date of the related Money Market
Quote, in the case of any Money Market Loan, the adoption of any applicable
law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall impose, modify or deem applicable any reserve, special deposit,
insurance assessment or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding (i) with respect to any CD Loan any such requirement
included in an applicable Domestic Reserve Percentage or Assessment Rate and
(ii) with respect to any Euro-Dollar Loan, any such requirement with respect
to which such Bank is entitled to compensation during the relevant Interest
Period under Section 2.07) against assets of, deposits with or for the account
of, or credit extended by, any Bank (or its Applicable Lending Office) or
shall impose on any Bank (or its Applicable Lending Office) or on the United
States market for certificates of deposit or the London interbank market any
other condition affecting its Fixed Rate Loans or its obligation to make Fixed
Rate Loans, and the result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or maintaining any
Fixed Rate Loan, or to reduce the amount of any sum received or receivable by
such Bank (or its Applicable Lending Office) under this Agreement with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of reducing the rate of
return on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time to time, within
15 days after demand by such Bank (with a copy to the Administrative Agent),
the Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the Administrative
Agent of any event, past or prospective, of which it has knowledge which will
entitle such Bank to compensation pursuant to this Section, or which such Bank
believes is reasonably likely to entitle such Bank to compensation pursuant to
this Section, and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section (for itself or for a Participant) and setting forth the
additional amount or amounts to be paid to it hereunder and indicating in
reasonable detail the computation thereof shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The Borrower shall not be liable pursuant to this Section to any
Bank to compensate it for any cost or reduction incurred or suffered more than
45 days before receipt by the Borrower of a notice from such Bank referring to
the event that gave rise to such cost or reduction.
(e) This Section 8.03 shall not require the Borrower to reimburse any
Bank for any Taxes or Other Taxes which are otherwise covered by the payment
of additional amounts or the indemnity set forth in Section 8.04(b) or (c),
respectively.
Section 8.4. Taxes. (a) For the purposes of this Section 8.04
the following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to any
payment by the Borrower pursuant to this Agreement or under any Note, and all
liabilities with respect thereto, excluding (i) in the case of each Bank and
the Administrative Agent, taxes imposed on its income, and franchise, branch
profits or similar taxes imposed on it, by a jurisdiction under the laws of
which such Bank or the Administrative Agent (as the case may be) is organized
or in which its principal executive office is located or, in the case of each
Bank, in which its Applicable Lending Office is located and (ii) in the case
of each Bank, any United States withholding tax imposed on such payments but
only to the extent that such Bank is subject to United States withholding tax
at the time such Bank first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary
taxes and any other excise or property taxes, or similar charges or levies,
which arise from any payment made pursuant to this Agreement or under any Note
or from the execution or delivery of, or otherwise with respect to, this
Agreement or any Note.
(b) Any and all payments by the Borrower to or for the account of any
Bank or the Administrative Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) such Bank or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions, (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.01, the original or a certified copy of a receipt evidencing
payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction
on amounts payable under this Section) paid by such Bank or the Administrative
Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto; provided, however,
that the Borrower shall not be required to indemnify any Bank or the
Administrative Agent under this Section 8.04 for any liability arising as a
result of such Bank's or Administrative Agent's willful misconduct or gross
negligence. This indemnification shall be paid within 30 days after such Bank
or the Administrative Agent (as the case may be) makes written demand therefor
(which demand shall identify the nature and the amount of Taxes and Other
Taxes for which indemnification is being sought).
(d) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Bank remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with true, accurate and complete (i)
Internal Revenue Service forms 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, executed in duplicate,
certifying that such Bank is entitled to benefits under an income tax treaty
to which the United States is a party which exempts the Bank from United
States withholding tax or reduces the rate of withholding tax on payments of
interest for the account of such Bank or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a
trade or business in the United States or (ii) if the interest payments made
to a Bank constitute "portfolio interest" as defined under Section 881(c) of
the Internal Revenue Code, Internal Revenue Service form W-8, or any successor
form prescribed by the Internal Revenue Service, executed in duplicate, and a
certificate representing that such Bank is not a bank for purposes of Section
881(c) of the Internal Revenue Code, is not a 10 percent shareholder of the
Borrower (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) and is not a "controlled foreign corporation" related to the Borrower
(within the meaning of Section 864(d)(4) of the Internal Revenue Code). Each
such Bank further agrees (but only so long as such Bank is lawfully able to do
so) to deliver to the Borrower and the Administrative Agent duly completed
copies of the above-mentioned Internal Revenue Service forms on or before the
earlier of (i) the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an
exemption from withholding of U.S. federal income tax and (ii) 30 days after
the occurrence of any event which would require a change in the most recent
form previously delivered to the Borrower and the Administrative Agent.
(e) For any period with respect to which a Bank has failed to provide
the Borrower or the Administrative Agent with the appropriate form or
certificate pursuant to Section 8.04(d) (unless such failure is due to a
change in treaty, law or regulation occurring subsequent to the date on which
such form or certificate originally was required to be provided), or with
respect to which any representation or certification on any such form or
certificate is, or proves to be, materially incorrect, false or misleading
when so made such Bank shall not be entitled to receive additional amounts or
indemnification under Section 8.04(b) or (c), respectively with respect to
Taxes imposed by the United States and such Bank shall indemnify and reimburse
the Borrower for any Taxes or Other Taxes which were required to be withheld
but which were not withheld as a result of such Bank's failure to provide the
appropriate form or certificate or such Bank's materially incorrect, false or
misleading representations or certifications; provided that if a Bank, which
is otherwise exempt from or subject to a reduced rate of withholding tax,
becomes subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps (at such Bank's cost and
expense) as such Bank shall reasonably request to assist such Bank to recover
such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section, then (i) such Bank will change
the jurisdiction of its Applicable Lending Office if, in the judgment of such
Bank, such change (x) will eliminate or reduce any such additional payment
which may thereafter accrue and (y) is not otherwise disadvantageous to such
Bank or (ii) if such Bank does not change the jurisdiction of its Applicable
Lending Office pursuant to (i), the Borrower shall have the right to designate
a substitute bank or banks pursuant to Section 8.06 hereof.
(g) Upon the reasonable request of the Borrower, and at the Borrower's
expense, each Bank shall use reasonable efforts to cooperate with the Borrower
with a view to obtain a refund of any Taxes which were not correctly or
legally imposed and for which the Borrower has indemnified such Bank under
this Section 8.04 if obtaining such refund would not, in the sole judgment of
such Bank, be disadvantageous to such Bank; provided that nothing in this
Section 8.04(g) shall be construed to require any Bank to institute any
administrative proceeding (other than the filing of a claim for any such
refund) or judicial proceeding to obtain any such refund. If a Bank shall
receive a refund from a taxing authority (as a result of any error in the
imposition of Taxes by such taxing authority) of any Taxes paid by the
Borrower pursuant to subsection (b) or (c) above, such Bank shall promptly pay
to the Borrower the amount so received without interest (other than interest
received from the taxing authority with respect to such refund) and net of
out-of-pocket expenses; provided that such Bank shall only be required to pay
to the Borrower such amounts as such Bank in its sole discretion determines are
attributable to Taxes paid by the Borrower. In the event such Bank or the
Administrative Agent is required to repay the amount of such refund (including
interest, if any), the Borrower, upon the request of such Bank or the
Administrative Agent (as the case may be), agrees to promptly return to such
Bank or the Administrative Agent the amount of such refund and interest, if any
(plus penalties, interest and other charges imposed in connection with the
repayment of such amounts by such Bank or the Administrative Agent).
(h) Notwithstanding the foregoing, nothing in this Section 8.04 shall be
construed to (i) entitle the Borrower or any other Persons to any information
determined by any Bank or the Administrative Agent, in its sole discretion, to
be confidential or proprietary information of such Bank or the Administrative
Agent, to any tax or financial information of any Bank or the Administrative
Agent or to inspect or review any books and records of any Bank or the
Administrative Agent, or (ii) interfere with the rights of any Bank or the
Administrative Agent to conduct its fiscal or tax affairs in such manner as it
deems fit.
Section 8.5. Base Rate Loans Substituted for Affected Fixed
Rate. If (i) the obligation of any Bank to make, or convert outstanding Loans
to, Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any
Bank has demanded compensation under Section 8.03(a) or 8.04, or the Borrower
is required to make any additional payments under Section 8.04 in respect of
any payments to any Bank, in either case with respect to its Euro-Dollar Loans
or its CD Loans, and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted into) CD Loans or Euro-Dollar Loans, as the case may
be, shall instead be Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other
Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may be,
has been repaid (or converted to a Base Rate Loan), all payments of principal
which would otherwise be applied to repay such Fixed Rate Loans shall be
applied to repay its Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a CD Loan or Euro-Dollar Loan, as the case may be, on the
first day of the next succeeding Interest Period applicable to the related CD
Loans or Euro-Dollar Loans of the other Banks.
Section 8.6. Substitution of Bank. If any Bank has
demanded compensation under Section 8.03 or 8.04, the Borrower is required
to make any additional payments under Section 8.04 in respect of any
payment to any Bank or any Bank defaults in any of its obligations to make
any Loan, the Borrower shall have the right to designate a substitute bank
or banks reasonably acceptable to the Administrative Agent (which may be
one or more of the Banks) to purchase the Loans and assume the Commitments
of such Bank and each Bank agrees in such event, if the Borrower so
designates a substitute or substitutes, it will sell its Loans and assign
its rights under this Agreement to such a substitute or substitutes as soon
as reasonably possible (and in any event within 30 days) after such
designation on substantially the terms set forth in Exhibit F for a payment
equal to the principal amount of its Loans plus all interest on such Loans
and all facility fees accrued but unpaid to but excluding the date of such
payment plus any loss or expense incurred by it (or by an existing or
prospective Participant in the related Loan), in connection with such
payment, including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment, as reasonably determined by
it.
ARTICLE 9
MISCELLANEOUS
Section 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower or the Administrative Agent, at its
address set forth on the signature pages hereof, (y) in the case of any Bank,
at its address set forth in its Administrative Questionnaire or (z) in the
case of any party, such other address as such party may hereafter specify for
the purpose by notice to the Administrative Agent and the Borrower. Each such
notice, request or other communication shall be effective (i) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (ii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Administrative Agent under Article 2 or Article 8 shall not be
effective until received.
Section 9.2. No Waivers. No failure or delay by any party
hereto in exercising any right, power or privilege hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided in the Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 9.3. Expenses; Indemnification. (a)The Borrower shall
pay (i) all reasonably incurred out-of-pocket expenses of the Agents,
including fees and disbursements of special counsel for the Agents, in
connection with the preparation and administration of this Agreement, any
waiver or consent hereunder or any amendment hereof or any Default or alleged
Default hereunder and (ii) if an Event of Default occurs, all out-of-pocket
expenses incurred by the Administrative Agent and each Bank, including fees
and disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
(b) The Borrower agrees to indemnify each Agent and Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an ""Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought
or threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that no Indemnitee shall
have the right to be indemnified hereunder for such Indemnitee's gross
negligence or willful misconduct.
Section 9.4. Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to any Loan payable to it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Loan payable to such other
Bank, the Bank receiving such proportionately greater payment shall purchase
such participations in the Loans payable to the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans shall be shared by the Banks
pro rata; provided that nothing in this Section shall impair the right of any
Bank to exercise any right of set-off or counterclaim it may have against any
Obligor and to apply the amount subject to such exercise to the payment of
indebtedness of such Obligor other than its indebtedness under the Loan
Documents. Each Obligor agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in a Loan acquired
pursuant to the foregoing arrangements may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as
if such holder of a participation were a direct creditor of such Obligor in
the amount of such participation.
Section 9.5. Amendments and Waivers. (a) Any provision of
this Agreement may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of any Agent are affected thereby, by such
Agent); provided that no such amendment or waiver shall, unless signed by all
the Banks having Exposures in respect of the affected Class, (i) increase any
Commitment of any Bank or subject any Bank to any additional obligation, (ii)
reduce the principal of or rate of interest on any Loan or any fees hereunder,
(iii) postpone the date fixed for any payment of principal of or interest on
any Loan or any fees hereunder or for the termination of any Commitment; and
provided further that no such amendment or waiver shall, unless signed by all
Banks, (x) change the percentage of the Exposures which shall be required for
the Banks to take any action under this Section or any other provision of the
Loan Documents; (y) permit termination of the Subsidiary Guarantee Agreement
(except, as to any Guarantor, as provided in Section 16 thereof) or (z) permit
the release of all or substantially all of the Collateral (except as provided
in Section 9.05(b)); and provided further that no such amendment or waiver
shall reduce the principal of or rate of interest on any Money Market Loan or
postpone the date fixed for any payment of principal of or interest on any
Money Market Loan unless signed by the Bank which has made such Money Market
Loan.
(b) Any provision of the Collateral Documents may be
amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the relevant Obligor and the Administrative Agent with the
consent of the Required Banks; provided that no such amendment or waiver
shall, unless signed by all the Banks, effect or permit a release of all or
substantially all of the Collateral. Notwithstanding the foregoing,
Collateral shall be released from the Lien of the Collateral Documents (i)
from time to time as necessary to effect any sale of assets permitted by
the Loan Documents and (ii) promptly upon the occurrence of a Release
Event, and in either such case the Administrative Agent shall, at the
expense of the Borrower, execute and deliver all documents reasonably
requested to evidence such release.
Section 9.6. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, provided that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement
except as contemplated by Section 5.09 or with the prior written consent of all
Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in any or all of
its Commitments or Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Bank shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Bank
in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating
interest shall provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii) or (iii) or (x), (y) or
(z) of Section 9.05(a) without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Section 2.07 and
Article 8 with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all or a portion of its rights and
obligations under this Agreement, and such Assignee shall assume such rights
and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit F hereto executed by such Assignee and such
transferor Bank; provided that no Bank may so assign to one Assignee an
Exposure less than $10,000,000; and provided further that after giving effect
to such assignment, the Exposure of the assignor Bank (together with its
affiliates) shall be either zero or $25,000,000 or more. Each such assignment
shall be made with (and subject to) the subscribed consent of the Borrower and
the Administrative Agent (which shall not, in either case, be unreasonably
withheld); provided that if an Assignee is an affiliate of such transferor
Bank or is a Bank immediately prior to such assignment, or if at the time an
Event of Default shall have occurred and be continuing, no such consent shall
be required. Upon execution and delivery of such instrument, recording of
such instrument as provided in Section 2.16(a), obtainment of the foregoing
required consents (if any) and payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, such Assignee shall be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank with Commitment(s)
and/or Loan(s) as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. In connection with any such assignment, the transferor Bank shall
pay to the Administrative Agent an administrative fee for processing such
assignment in the amount of $3,000. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall, prior
to the first date on which interest or fees are payable hereunder for its
account, deliver to the Borrower and the Administrative Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04,
(and the Borrower shall not incur any greater liability for Taxes or Other
Taxes pursuant to Section 8.04), than such Bank would have been entitled to
receive with respect to the rights transferred (or than the Borrower was
liable for with respect to the transferor Bank), unless such transfer is made
with the Borrower's prior written consent or by reason of the provisions of
Section 8.02, 8.03 or 8.04 requiring such Bank to designate a different
Applicable Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
Section 9.7. Governing Law; Submission to Jurisdiction, WAIVER
OF JURY TRIAL. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court
for the Southern District of New York and of any New York State court sitting
in New York City for purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. EACH OF THE
BORROWER, THE AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.8. Counterparts; Integration; Effectiveness. (a)
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. The Loan Documents constitute the
entire agreement and understanding among the parties hereto and supersede any
and all prior agreements and understandings, oral or written, relating to the
subject matter hereof.
(b) This Agreement shall become effective on the date that the
Administrative Agent shall have received counterparts hereof signed by each of
the parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Administrative Agent
in form satisfactory to it of telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof by such party); provided
that this Agreement shall not become effective unless the Closing Date is on
or prior to March 1, 1997.
Section 9.9. Confidentiality. Each Agent and each Bank
agrees to keep any information delivered or made available by any Obligor
pursuant to the Loan Documents confidential from anyone other than persons
employed or retained by such Bank and its affiliates who are engaged in
evaluating, approving, structuring or administering the credit facility
contemplated hereby; provided that nothing herein shall prevent either Agent
or any Bank from disclosing such information (a) to any other Bank or to any
Agent, (b) to any other Person if reasonably incidental to the administration
of the credit facility contemplated hereby, (c) upon the order of any court or
administrative agency, (d) upon the request or demand of any regulatory agency
or authority, (e) which had been publicly disclosed other than as a result of
a disclosure by any Agent or any Bank prohibited by this Agreement, (f) in
connection with any litigation to which any Agent, any Bank or its
subsidiaries or Parent may be a party, (g) to the extent necessary in
connection with the exercise of any remedy hereunder, (h) to such Bank's or
Agent's legal counsel and independent auditors and (i) subject to provisions
substantially similar to those contained in this Section, to any actual or
proposed Participant or Assignee.
Section 9.10. Termination. This Agreement shall terminate
upon the termination of all Commitments and repayment in full of the
aggregate outstanding principal amount of the Loans, accrued interest thereon,
and all fees and expenses and other amounts due and payable at such time;
provided that the provisions of Sections 7.06, 8.03, 8.04 and 9.03 shall
survive such termination.
Section 9.11. Collateral. Each of the Banks represents to the
Agent and each of the other Banks that it in good faith is not relying upon
any "margin stock" (as defined in the Margin Regulations) as collateral in the
extension or maintenance of the credit provided for in this Agreement. Each
of the Banks acknowledges that the proceeds of the Loans hereunder will be
used as described in Section 5.10.
Section 9.12. Representations of Banks. (a) Each of the Banks
represents and warrants to the Borrower that it is a corporation or
association duly incorporated or organized and validly existing under the laws
of its jurisdiction of incorporation or organization, as the case may be.
(b) Each of the Banks represents and warrants to the Borrower
that this Agreement constitutes a valid and binding agreement of it
enforceable against it in accordance with the terms hereof subject to (i)
applicable receivership, insolvency, reorganization, moratorium and other laws
affecting the rights of creditors of banks or other institutions generally
from time to time in effect and (ii) equitable principles of general
applicability.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
NORFOLK SOUTHERN CORPORATION
By
Name:
Title: Vice President and Treasurer
Three Commercial Place
Norfolk, Virginia 23510-2191
Attention: William J. Romig
Vice President and Treasurer
Facsimile number: 804-629-2798
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By
Name:
Title:
MERRILL LYNCH CAPITAL CORPORATION
By
Name:
Title:
BANK OF MONTREAL
By
Name:
Title:
THE BANK OF NEW YORK
By
Name:
Title:
BANKERS TRUST COMPANY
By
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By
Name:
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH
By
Name:
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By
Name:
Title:
By
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By
Name:
Title:
THE FUJI BANK, LTD.
By
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
- NEW YORK BRANCH
By
Name:
Title:
LTCB TRUST COMPANY
By
Name:
Title:
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By
Name:
Title:
ROYAL BANK OF CANADA
By
Name:
Title:
THE SANWA BANK, LIMITED
By
Name:
Title:
SOCIETE GENERALE
By
Name:
Title:
THE SUMITOMO TRUST & BANKING CO.,
LTD., NEW YORK BRANCH
By
Name:
Title:
THE TOKAI BANK, LIMITED,
NEW YORK BRANCH
By
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.
By
Name:
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By
Name:
Title:
ABN AMRO BANK N.V., NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
By
Name:
Title:
BANQUE PARIBAS
By
Name:
Title:
By
Name:
Title:
COMMERZBANK AG, NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By
Name:
Title:
By
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., RABOBANK NEDERLAND
By
Name:
Title:
By
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By
Name:
Title:
By
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
By
Name:
Title:
By
Name:
Title:
FLEET NATIONAL BANK
By
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By
Name:
Title:
THE ASAHI BANK, LTD.
By
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By
Name:
Title:
THE SAKURA BANK, LIMITED
By
Name:
Title:
THE TOYO TRUST &
BANKING COMPANY, LIMITED
By
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
BAYERISCHE LANDESBANK
By
Name:
Title:
By
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By
Name:
Title:
By
Name:
Title:
LLOYDS BANK PLC
By
Name:
Title:
By
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By
Name:
Title:
THE YASUDA TRUST & BANKING
CO., LIMITED
By
Name:
Title:
AYERISCHE HYPOTHEKEN-UND
ECHSEL-BANK AG, NEW YORK
RANCH
By
Name:
Title:
By
Name:
Title:
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
BHF - BANK AKTIENGESELLSCHAFT
By
Name:
Title:
By
Name:
Title:
CAISSE NATIONALE DE CREDIT
AGRICOLE
By
Name:
Title:
CREDIT LOCAL DE FRANCE
By
Name:
Title:
By
Name:
Title:
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED NEW YORK
BRANCH
By
Name:
Title:
SUNTRUST BANK, ATLANTA
By
Name:
Title:
By
Name:
Title:
BANCA NAZIONALE DEL LAVORO
SPA - NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR
By
Name:
Title:
CREDITANSTALT-BANKVEREIN
By
Name:
Title:
By
Name:
Title:
CRESTAR BANK
By
Name:
Title:
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By
Name:
Title:
CHIAO TUNG BANK CO., LTD.
By
Name:
Title:
NATIONAL BANK OF KUWAIT SAK
By
Name:
Title:
STAR BANK, N.A.
By
Name:
Title:
PER PRO BROWN BROTHERS
HARRIMAN & CO.
By
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
Name:
Title:
60 Wall Street
New York, New York 10260
Attention: Loan Department
Facsimile number:
Telex number: 177615
MERRILL LYNCH CAPITAL
CORPORATION, as Documentation Agent
By
Name:
Title:
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281
Attention:
Facsimile number: 212-449-8230
<TABLE>
<CAPTION>
Commitment Schedule
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revolving Credit Term Loan III Term Loan II Term Loan I
Bank Name Commitment Commitment Commitment Commitment
----------------- ---------------- ---------------- ----------------
Morgan Guaranty Trust Company $108,692,307.69 $108,692,307.69 $126,807,692.31 $126,807,692.31
of New York
Merrill Lynch Capital Corporation $108,692,307.69 $108,692,307.69 $126,807,692.31 $126,807,692.31
Bank of Montreal $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Bank of New York $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Bankers Trust Company $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Canadian Imperial Bank of Commerce $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Credit Lyonnais Atlanta Agency $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Dai-Ichi Kangyo Bank, Ltd., New York $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Branch
Dresdner Bank AG, New York and Grand $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Cayman Branches
The First National Bank of Chicago $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
First Union National Bank of North Carolina $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Fuji Bank, Ltd. $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Industrial Bank of Japan, Limited - New $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
York Branch
LTCB Trust Company $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Mitsubishi Trust and Banking $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Corporation
Royal Bank of Canada $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Sanwa Bank, Limited $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Societe Generale $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
The Sumitomo Bank, Limited New York $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Branch
The Tokai Bank, Limited, New York Branch $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Toronto Dominion (New York), Inc. $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Union Bank of Switzerland, New York Branch $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
Wachovia Bank of North Carolina, N.A. $73,153,846.15 $73,153,846.15 $85,346,153.85 $85,346,153.85
ABN AMRO Bank N.V., New York Branch $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Banca Commerciale Italiana, New York $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Branch
The Bank of Tokyo-Mitsubishi, Ltd. $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Banque Paribas $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Commerzbank AG, New York Branch $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Compagnie Financiere de CIC et de L'Union $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Europeenne
Cooperatieve Centrale Raiffeisen- $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Boerenleenbank B.A., Rabobank Nederland
Credit Suisse First Boston $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
DG Bank Deutsche Genossenschaftsbank $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Fleet National Bank $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
KeyBank National Association $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
The Asahi Bank, Ltd. $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
The Royal Bank of Scotland plc $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
The Sakura Bank, Limited $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
The Toyo Trust & Banking Company, Limited $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
Westdeutsche Landesbank Girozentrale, New $52,153,846.15 $52,153,846.15 $60,846,153.85 $60,846,153.85
York Branch
Bayerische Landesbank $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
Deutsche Bank AG, New York and/or Cayman $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
Islands Branch
Lloyds Bank plc $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
The Nippon Credit Bank, Ltd. $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
The Yasuda Trust & Banking Co., Limited $34,615,384.62 $34,615,384.62 $40,384,615.38 $40,384,615.38
Bayerische Hypotheken-und Wechsel-Bank $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
AG, New York Branch
Bayerische Vereinsbank AG, New York $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
Branch
BHF-Bank Aktiengesellschaft $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
Caisse Nationale de Credit Agricole $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
Credit Local de France $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
The Mitsui Trust and Banking Company, $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.921
Limited, New York Branch
Suntrust Bank, Atlanta $23,076,923.08 $23,076,923.08 $26,923,076.92 $26,923,076.92
Banca Nazionale del Lavoro S.p.A. - New $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
York Branch
Banque Francaise du Commerce Exterieur $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
Creditanstalt-Bankverein $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
Crestar Bank $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
The Sumitomo Trust & Banking Co., Ltd., $11,538,461.54 $11,538,461.54 $13,461,538.46 $13,461,538.46
New York Branch
Chiao Tung Bank Co., Ltd. $5,769,230.77 $5,769,230.77 $6,730,769.23 $6,730,769.23
National Bank of Kuwait SAK $5,769,230.77 $5,769,230.77 $6,730,769.23 $6,730,769.23
Star Bank, N.A. $5,769,230.77 $5,769,230.77 $6,730,769.23 $6,730,769.23
Per Pro Brown Brothers Harriman & Co. $2,307,692.31 $2,307,692.31 $2,692,307.69 $2,692,307.69
</TABLE>
PRICING SCHEDULE
"Base Rate Margin" means (x) for any day prior to the
Acquisition Date, 0% and (y) for any day on or after the Acquisition Date,
the percentage set forth below in the applicable row under the column
corresponding to the Status that exists on such day; provided that in the
event that (i) Level IV Status or Level V Status exists on such day and (ii)
the Loans are rated BB+ or lower by S&P or Ba1 or lower by Moody's, 0.125%
shall be added to the Base Rate Margin for such day.
"CD Margin" means (x) for any day prior to the Acquisition
Date, 0.225% and (y) for any day on or after the Acquisition Date, the
percentage set forth below in the applicable row under the column
corresponding to the Status that exists on such day; provided that in the
event that (i) Level IV Status or Level V Status exists on such day and (ii)
the Loans are rated BB+ or lower by S&P or Ba1 or lower by Moody's, 0.125%
shall be added to the CD Margin for such day.
"Euro-Dollar Margin" means (x) for any day prior to the
Acquisition Date, 0.1% and (y) for any day on or after the Acquisition Date,
the percentage set forth below in the applicable row under the column
corresponding to the Status that exists on such day; provided that in the
event that (i) Level IV Status or Level V Status exists on such day and (ii)
the Loans are rated BB+ or lower by S&P or Ba1 or lower by Moody's, 0.125%
shall be added to the Euro-Dollar Margin for such day.
"Facility Fee Rate" means (x) for any day prior to the
Acquisition Date, 0.25% and (y) for any day on or after the Acquisition Date,
the percentage set forth below in the applicable row under the column
corresponding to the Status that exists on such day.
<TABLE>
<CAPTION>
Level Level Level Level Level
Status I II III IV V
<S> <C> <C> <C> <C> <C>
Base Rate 0.00% 0.00% 0.00% 0.00% 0.250%
Margin
Euro-Dollar 0.225% 0.350% 0.475% 0.750% 0.875%
Margin
CD Margin 0.350% 0.475% 0.600% 0.875% 1.00%
Facility Fee Rate 0.125% 0.150% 0.175% 0.250% 0.375%
</TABLE>
For purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, at such date, the
Borrower's senior unsecured long-term debt is rated BBB+/Baa1 or higher.
"Level II Status" exists at any date if, at such date, the
Borrower's senior unsecured long-term debt is rated BBB/Baa2.
"Level III Status" exists at any date if, at such date, the
Borrower's senior unsecured long-term debt is rated BBB-/Baa3.
"Level IV Status" exists at any date if, at such date, the
Borrower's senior unsecured long-term debt is rated BB+/Ba1.
"Level V Status" exists at any date if, at such date, no other
Status exists.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc.
"Status" refers to the determination of which of Level I
Status, Level II Status, Level III Status, Level IV Status or Level V Status
exists at any date.
The credit ratings to be utilized for purposes of this
Schedule are those assigned to the senior unsecured long-term debt
securities of the Borrower without third-party credit enhancement, and any
rating assigned to any other debt security of the Borrower shall be
disregarded provided that unless and until Moody's and S&P shall have
announced new ratings giving effect to the Acquisition, Level IV Status
shall exist. The rating in effect at any date is that in effect at the
close of business on such date. In the event of split ratings from Moody's
and S&P, (i) if the ratings are one full rating category apart, Status
shall be determined by the higher of the two ratings (unless the lower of
such two ratings is BB+ (Ba1) or lower, in which case Status shall be
determined by the lower of such two ratings) and (ii) if the ratings are
more than one full rating category apart, Status shall be determined based
on the rating at the midpoint between the two ratings, provided that if
there is no rating at the midpoint between the two ratings, the higher of
the two intermediate ratings (unless the lower of such two ratings is BB+
(Ba1) or lower, in which case Status shall be determined by the lower of
such two ratings) shall apply (e.g., BBB+/Baa2 results in Level I Status,
BBB+/Baa3, BBB/Baa3 and BBB+/Ba1 all result in Level II Status while BBB-
/Ba1 and BBB/Ba2 result in Level IV Status).
VOTING TRUST AGREEMENT
(VTA-3)
THIS VOTING TRUST AGREEMENT, dated as of February 10, 1997, by and
among Norfolk Southern Corporation, a Virginia corporation ("Parent"),
Atlantic Acquisition Corporation, a Pennsylvania corporation and a wholly
owned subsidiary of Parent ("Acquiror"), and the First American National
Bank (the "Trustee").
W I T N E S S E T H:
WHEREAS, Atlantic Investment Company, a Delaware corporation and a
wholly owned subsidiary of Parent ("AIC"), owns on the date hereof 100
shares of common stock, $1.00 par value ("Common Shares"), of Conrail
Inc., a Pennsylvania corporation (the "Company").
WHEREAS, Acquiror has commenced a tender offer (the "Tender Offer")
to acquire up to an aggregate of 8,200,000 additional (i) Common Shares,
and (ii) shares of Series A ESOP Convertible Junior Preferred Stock, no
par value (the "ESOP Preferred Shares" and, together with the Common
Shares, the "Shares"), including, in each case, the associated Common
Stock Purchase Rights issued pursuant to the Rights Agreement, dated as
of July 19, 1989, between the Company and First Chicago Trust Company of
New York, as Rights Agent at a price of $115 per Share, net to the seller
in cash, and, following consummation of the tender offer, intends to
commence a second tender offer to acquire all outstanding Shares not
owned by Acquiror at a price of $115 per Share, net to the seller in cash
(the "Second Tender Offer" and, collectively with the Tender Offer, the
"Tender Offers").
WHEREAS, Shares acquired (the "Acquired Shares") pursuant to the
Tender Offer and the Second Tender Offer may be sufficient to empower the
Parent or the Acquiror to control the Company.
WHEREAS, the Acquiror wishes to deposit all Acquired Shares with
the acceptance for payment of such Acquired Shares pursuant to the Tender
Offers, or otherwise, to deposit such Shares in an independent,
irrevocable voting trust, pursuant to the rules of the Surface
Transportation Board (the "STB"), in order to avoid any allegation or
assertion that the Parent or the Acquiror is controlling or has the power
to control the Company prior to the receipt of any required STB approval
or exemption;
WHEREAS, the Parent intends to place the common stock of the
Acquiror in such voting trust at or immediately prior to a merger or
other combination (the "Merger") of the Acquiror with the Company
pursuant to an Agreement and Plan of Merger to be entered into by and
among the Parent, the Acquiror and the Company, as it may be amended from
time to time (the "Acquisition Agreement"), in order to avoid any
allegation or assertion that the Merger would result in the Parent
controlling or having the power to control the Company prior to receipt
of any required STB approval;
WHEREAS, neither the Trustee nor any of its affiliates has any
officers or board members in common or any direct or indirect business
arrangements or dealings (as described in Paragraph 9 hereof) with the
Parent or the Acquiror or any of their affiliates; and
WHEREAS, the Trustee is willing to act as voting trustee pursuant
to the terms of this Trust Agreement and the rules of the STB,
NOW THEREFORE, the parties hereto agree as follows:
1. Creation of Trust--The Parent and the Acquiror hereby appoint
the First American National Bank as Trustee hereunder, and the Bank
hereby accepts said appointment and agrees to act as Trustee under this
Trust Agreement as provided herein.
2. Trust Is Irrevocable--This Trust Agreement and the nomination of
the Trustee during the term of the trust shall be irrevocable by the
Parent and the Acquiror and their affiliates and shall terminate only in
accordance with, and to the extent of, the provisions of Paragraphs 8 and
14 hereof.
3. Deposit of Trust Stock--The Parent and the Acquiror agree that,
prior to acceptance of any Acquired Shares purchased pursuant to each of
the Tender Offers, the Acquiror will direct the depositaries for the
Tender Offers to transfer to the Trustee any such Acquired Shares
purchased pursuant to the Tender Offers. The Parent and the Acquiror also
agree that simultaneously with receipt, acquisition or purchase of any
additional Shares by either of them, directly or indirectly, or by any of
their affiliates, they will transfer to the Trustee the certificate or
certificates for such Shares. All such certificates shall be duly
endorsed or accompanied by proper instruments duly executed for transfer
thereof to the Trustee or otherwise validly and properly transferred, and
shall be exchanged for one or more Voting Trust Certificates
substantially in the form attached hereto as Exhibit A (the "Trust
Certificates"), with the blanks therein appropriately filled in. All
Shares at any time delivered to the Trustee hereunder are called the
"Trust Stock." The Trustee shall present to the Company all certificates
representing Trust Stock for surrender and cancellation and for the
issuance and delivery to the Trustee of new certificates registered in
the name of the Trustee or its nominee.
Parent agrees that, at or immediately prior to the Merger, it will
transfer to the Trustee all issued and outstanding shares of the common
stock of the Acquiror owned by the Parent, which certificates shall be
duly endorsed or accompanied by proper instruments duly executed for
transfer thereof to the Trustee, in exchange for one or more Voting Trust
Certificates substantially in the form attached hereto as Exhibit B (the
"Acquiror Trust Certificates"), with the blanks therein appropriately
filled. All shares of the common stock of the Acquiror at any time
delivered to the Trustee hereunder are hereinafter called the "Acquiror
Trust Stock." The Trustee shall present to the Acquiror all certificates
representing the Acquiror Trust Stock for surrender and cancellation by
the Acquiror, and for the issuance and delivery to the Trustee of new
certificates registered in the name of the Trustee or its nominee.
4. Powers of Trustee--The Trustee shall be present, in person or
represented by proxy, at all annual and special meetings of shareholders
of the Company so that all Trust Stock may be counted for the purposes of
determining the presence of a quorum at such meetings. The Trustee shall
exercise all voting rights in respect of the Trust Stock to approve and
effect the Merger (including, without limitation, by means of a
"short-form" merger pursuant to Section 1924(b)(ii) of the Pennsylvania
Business Corporation Law), and in favor of any proposal or action
necessary or desirable to effect, or consistent with the effectuation of,
the Parent and Acquiror's acquisition of the Company, pursuant to the
Acquisition Agreement, and without limiting the generality of the
foregoing, if there shall be with respect to the Board of Directors of
the Company an "Election Contest" as defined in the Proxy Rules of the
Securities and Exchange Commission (the "SEC"), in which one slate of
nominees shall support the effectuation of the Merger and another oppose
it, vote in favor of the removal of any directors opposing the Merger and
in favor of the election of the slate supporting the effectuation of the
Merger. In addition, for so long as the Acquisition Agreement is in
effect, the Trustee shall exercise all voting rights in respect of the
Trust Stock, to cause any other proposed merger, business combination or
similar transaction (including, without limitation, any consolidation,
sale or purchase of assets, reorganization, recapitalization, liquidation
or winding up of or by the Company) involving the Company, but not
involving the Parent or one of its subsidiaries or affiliates (otherwise
than in connection with a disposition pursuant to Paragraph 8), not to be
effected. In addition, the Trustee shall exercise all voting rights in
respect of the Trust Stock in favor of any proposal or action necessary
or desirable to dispose of Trust Stock in accordance with Paragraph 8
hereof. Except as provided in the three immediately preceding sentences
or in Paragraph 5 hereof, the Trustee shall vote all shares of Trust
Stock with respect to all matters, including without limitation the
election or removal of directors, voted on by the shareholders of the
Company (whether at a regular or special meeting or pursuant to a
unanimous written consent) in accordance with its best judgment
concerning the interests of the Company. In exercising its voting rights
in accordance with this Paragraph 4, the Trustee shall take such actions
at all annual, special or other meetings of stockholders of the Company
or in connection with any and all consents of shareholders in lieu of a
meeting.
5. Further Provisions Concerning Voting of Trust Stock--The Trustee
shall be entitled and it shall be its duty to exercise any and all voting
rights in respect of the Trust Stock either in person or by proxy, as
hereinafter provided (including without limitation Paragraphs 4 and 8(b)
hereof), unless otherwise directed by the STB or a court of competent
jurisdiction. Subject to Paragraph 4, the Trustee shall not exercise the
voting powers of the Trust Stock in any way so as to create any
dependence or intercorporate relationship between (i) any or all of the
Parent, the Acquiror and their affiliates, on the one hand, and (ii) the
Company or its affiliates, on the other hand. The term "affiliate" or
"affiliates" wherever used in this Trust Agreement shall have the meaning
specified in Section 11323(c) of Title 49 of the United States Code, as
amended. The Trustee shall not, without the prior approval of the STB,
vote the Trust Stock to elect any officer, director, nominee or
representative of the Parent, the Acquiror or their affiliates as an
officer or director of the Company or of any affiliate of the Company.
The Trustee shall be kept informed respecting the business operations of
the Company by means of the financial statements and other public
disclosure documents periodically filed by the Company and affiliates of
the Company with the SEC and the STB, and by means of information
respecting the Company contained in such statements and other documents
filed by the Parent with the SEC and the STB, copies of which shall be
promptly furnished to the Trustee by the Company or the Parent, as the
case may be, and the Trustee shall be fully protected in relying upon
such information. The Trustee shall not be liable for any mistakes of
fact or law or any error of judgment, or for any act or omission, except
as a result of the Trustee's willful misconduct or gross negligence.
Notwithstanding the foregoing provisions of this Paragraph 5, however,
the registered holder of any Trust Certificate may at any time with the
prior written approval of Parent--but only with the prior written
approval of the STB--instruct the Trustee in writing to vote the Trust
Stock represented by such Trust Certificate in any manner, in which case
the Trustee shall vote such shares in accordance with such instructions.
6. Transfer of Trust Certificates--All Trust Certificates shall be
transferable on the books of the Trustee by the registered holder upon
the surrender thereof properly assigned, in accordance with rules from
time to time established for the purpose by the Trustee. Until so
transferred, the Trustee may treat the registered holder as owner for all
purposes. Each transferee of a Trust Certificate issued hereunder shall,
by his acceptance thereof, assent to and become a party to this Trust
Agreement, and shall assume all attendant rights and obligations.
7. Dividends and Distributions--Pending the termination of this
Trust as hereinafter provided, the Trustee shall, immediately following
the receipt of each cash dividend or cash distribution as may be declared
and paid upon the Trust Stock, pay the same over upon the order of
Acquiror to the registered holders of the Trust Certificates in
proportion to their respective interests. The Trustee shall receive and
hold dividends and distributions other than cash upon the same terms and
conditions as the Trust Stock and shall issue Trust Certificates
representing any new or additional securities that may be paid as
dividends or otherwise distributed upon the Trust Stock to the registered
holders of Trust Certificates in proportion to their respective
interests.
8. Disposition of Trust Stock; Termination of Trust--(a) This Trust
is accepted by the Trustee subject to the right hereby reserved in the
Parent at any time to sell or make any other disposition of the whole or
any part of the Trust Stock, whether or not an event described in
subparagraph (b) below has occurred. The Trustee shall take all actions
reasonably requested by the Parent (including, without limitation,
exercising all voting rights in respect of Trust Stock in favor of any
proposal or action necessary or desirable to effect, or consistent with
the effectuation of or with respect to any proposed sale or other
disposition of the whole or any part of the Trust Stock by the Acquiror
or Parent that is otherwise permitted pursuant to this Paragraph 8. In
the event of a permitted sale of Trust Stock by the Acquiror, the Trustee
shall, to the extent the consideration therefor is payable to or
controllable by the Trustee, promptly pay, or cause to be paid, upon the
order of the Acquiror the net proceeds of such sale to the registered
holders of the Trust Certificates in proportion to their respective
interests. It is the intention of this Paragraph that no violation of 49
U.S.C. Section 11323 will result from a termination of this Trust.
(b) In the event the STB by final order shall (i) approve or exempt
the acquisition of control of the Company by the Acquiror, the Parent or
any of their affiliates or (ii) approve or exempt a merger or similar
business combination between the Company and the Acquiror, the Parent or
any of their affiliates, then immediately upon the direction of the
Parent and the delivery of a certified copy of such order of the STB or
other governmental authority with respect thereof, or, in the event that
Subtitle IV of Title 49 of the United States Code, or other controlling
law, is amended to allow the Acquiror, the Parent or their affiliates to
acquire control of the Company without obtaining STB or other
governmental approval, upon delivery of an opinion of independent counsel
selected by the Trustee that no order of the STB or other governmental
authority is required, the Trustee shall either (x) transfer upon the
order of Acquiror to the registered holders of the Trust Certificates in
proportion to their respective interests, its right, title and interest
in and to all of the Trust Stock then held by it in accordance with the
terms, conditions and agreements of this Trust Agreement and not
theretofore transferred by it as provided in subparagraph (a) hereof, or
(y) if shareholder approval has not previously been obtained, vote the
Trust Stock with respect to any such merger or similar business
combination between the Company and the Acquiror, the Parent or any
affiliate of either as directed by the holder or holders of a majority in
interest of the Trust Certificates, and upon any such transfer, merger or
similar business combination this Trust shall cease and come to an end.
(c) In the event that the STB should issue an order denying, or
approving subject to conditions unacceptable to the Parent, any
application or petition by the Acquiror, the Parent or their affiliates
to merge with or otherwise exercise control over the Company or the
surviving corporation in the Merger, and such order becomes final after
judicial review or failure to appeal, Parent shall use its best efforts
to sell, distribute or otherwise to dispose of the Trust Stock or all of
the assets of the Company or the surviving corporation in the Merger, to
one or more eligible purchasers, during a period of two years after such
order becomes final after judicial review or failure to appeal, and
subject to any jurisdiction of the STB to oversee Parent's divestiture of
Trust Stock. At all times, the Trustee shall continue to perform its
duties under this Trust Agreement and, should Parent be unsuccessful in
its efforts to sell or distribute the Trust Stock during the period
referred to, the Trustee shall then as soon as practicable sell the Trust
Stock for cash to eligible purchasers in such manner and for such price
as the Trustee in its discretion shall deem reasonable after consultation
with Parent. (An "eligible purchaser" hereunder shall be a person or
entity that is not affiliated with Parent and which has all necessary
regulatory authority, if any, to purchase the Trust Stock.) Parent agrees
to cooperate with the Trustee in effecting such disposition and the
Trustee agrees to act in accordance with any direction made by Parent as
to any specific terms or method of disposition, to the extent not
inconsistent with any of the terms of this Trust Agreement and with the
requirements of the terms of any STB or court order. The proceeds of the
sale shall be distributed upon the order of Acquiror to the registered
holders of the Trust Certificates in proportion to their respective
interests. The Trustee may, in its reasonable discretion, require the
surrender to it of the Trust Certificates hereunder before paying to the
holder his share of the proceeds. Upon disposition of all the Trust Stock
pursuant to this paragraph 8(c), this Trust shall cease and come to an
end.
(d) Unless sooner terminated pursuant to any other provision herein
contained, this Trust Agreement shall terminate on December 31, 2016, and
may be extended by the parties hereto, so long as no violation of 49
U.S.C. Section 11323 will result from such termination or extension. All
Trust Stock and any other property held by the Trustee hereunder upon
such termination shall be distributed upon the order of Acquiror to the
registered holders of the Trust Certificates in proportion to their
respective interests. The Trustee may, in its reasonable discretion,
require the surrender to it of the Trust Certificates hereunder before
the release or transfer of the stock interests evidenced thereby.
(e) The Trustee shall promptly inform the STB of any transfer or
disposition of Trust Stock pursuant to this Paragraph 8.
(f) Except as expressly provided in this Paragraph 8, the Trustee
shall not dispose of, or in any way encumber, the Trust Stock, and any
transfer, sale or encumbrance in violation of the foregoing shall be null
and void.
9. Independence of the Trustee--Neither the Trustee nor any
affiliate of the Trustee may have (i) any officers, or members of their
respective boards of directors, in common with the Acquiror, the Parent,
or any affiliate of either, or (ii) any direct or indirect business
arrangements or dealings, financial or otherwise, with the Acquiror, the
Parent or any affiliate of either, other than dealings pertaining to the
establishment and carrying out of this voting trust. Mere investment in
the stock or securities of the Acquiror or the Parent or any affiliate of
either by the Trustee, short of obtaining a controlling interest, will
not be considered a proscribed business arrangement or dealing, but in no
event shall any such investment by the Trustee in voting securities of
the Acquiror, the Parent or their affiliates exceed five percent of their
outstanding voting securities and in no event shall the Trustee hold a
proportion of such voting securities so substantial as to permit the
Trustee in any way to control or direct the affairs of the Acquiror, the
Parent or their affiliates. Neither the Acquiror, the Parent nor their
affiliates shall purchase the stock or securities of the Trustee or any
affiliate of the Trustee.
10. Compensation of the Trustee--The Trustee shall be entitled to
receive reasonable and customary compensation for all services rendered
by it as Trustee under the terms hereof and said compensation to the
Trustee, together with all counsel fees, taxes, or other expenses
reasonably incurred hereunder, shall be promptly paid by the Acquiror or
the Parent.
11. Trustee May Act Through Agents--The Trustee may at any time or
from time to time appoint an agent or agents and may delegate to such
agent or agents the performance of any administrative duty of the
Trustee.
12. Concerning the Responsibilities and Indemnification of the
Trustee--The Trustee shall not be answerable for the default or
misconduct of any agent or attorney appointed by it in pursuance hereof
if such agent or attorney has been selected with reasonable care. The
duties and responsibilities of the Trustee shall be limited to those
expressly set forth in this Trust Agreement. The Trustee shall not be
responsible for the sufficiency or the accuracy of the form, execution,
validity or genuineness of the Trust Stock, or of any documents relating
thereto, or for any lack of endorsement thereon, or for any description
therein, nor shall the Trustee be responsible or liable in any respect on
account of the identity, authority or rights of the persons executing or
delivering or purporting to execute or deliver any such Trust Stock or
document or endorsement or this Trust Agreement, except for the execution
and delivery of this Trust Agreement by this Trustee. The Acquiror and
the Parent agree that they will at all times protect, indemnify and save
harmless the Trustee from any loss, cost or expense of any kind or
character whatsoever in connection with this Trust except those, if any,
growing out of the gross negligence or willful misconduct of the Trustee,
and will at all times themselves undertake, assume full responsibility
for, and pay all costs and expense of any suit or litigation of any
character, including any proceedings before the STB, with respect to the
Trust Stock of this Trust Agreement, and if the Trustee shall be made a
party thereto, the Acquiror or the Parent will pay all costs and
expenses, including reasonable counsel fees, to which the Trustee may be
subject by reason thereof; provided, however, that the Acquiror and the
Parent shall not be responsible for the cost and expense of any suit that
the Trustee shall settle without first obtaining the Parent's written
consent. The Trustee may consult with counsel and the opinion of such
counsel shall be full and complete authorization and protection in
respect of any action taken or omitted or suffered by the Trustee
hereunder in good faith and in accordance with such opinion.
13. Trustee to Give Account to Holders--To the extent requested to
do so by the Acquiror or any registered holder of a Trust Certificate,
the Trustee shall furnish to the party making such request full
information with respect to (i) all property theretofore delivered to it
as Trustee, (ii) all property then held by it as Trustee, and (iii) all
actions theretofore taken by it as Trustee.
14. Resignation, Succession, Disqualification of Trustee--The
Trustee, or any trustee hereafter appointed, may at any time resign by
giving sixty days' written notice of resignation to the Parent and the
STB. The Parent shall at least fifteen days prior to the effective date
of such notice appoint a successor trustee which shall (i) satisfy the
requirements of Paragraph 9 hereof and (ii) be a corporation organized
and doing business under the laws of the United States or of any State
thereof and authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority. If
no successor trustee shall have been appointed and shall have accepted
appointment at least fifteen days prior to the effective date of such
notice of resignation, the resigning Trustee may petition any competent
authority or court of competent jurisdiction for the appointment of a
successor trustee. Upon written assumption by the successor trustee of
the Trustee's powers and duties hereunder, a copy of the instrument of
assumption shall be delivered by the Trustee to the Parent and the STB
and all registered holders of Trust Certificates shall be notified of its
assumption, whereupon the Trustee shall be discharged of the powers and
duties of the Trustee hereunder and the successor trustee shall become
vested with such powers and duties. In the event of any material
violation by the Trustee of the terms and conditions of this Trust
Agreement, the Trustee shall become disqualified from acting as trustee
hereunder as soon as a successor trustee shall have been selected in the
manner provided by this paragraph.
15. Amendment--Subject to the requirements of the Acquisition
Agreement, this Trust Agreement may from time to time be modified or
amended by agreement executed by the Trustee, the Acquiror (if executed
prior to the Merger), the Parent and all registered holders of the Trust
Certificates (i) pursuant to an order of the STB, (ii) with the prior
approval of the STB, (iii) in order to comply with any order of the STB
or (iv) upon receipt of an opinion of counsel satisfactory to the Trustee
and the holders of Trust Certificates that an order of the STB approving
such modification or amendment is not required and that the amendment is
consistent with the STB's regulations regarding voting trusts.
16. Governing Law; Powers of the STB--The provisions of this Trust
Agreement and of the rights and obligations of the parties hereunder
shall be governed by the laws of the State of Tennessee, except that to
the extent any provision hereof may be found inconsistent with subtitle
IV, title 49, United States Code or regulations promulgated thereunder,
such statute and regulations shall control and such provision hereof
shall be given effect only to the extent permitted by such statute and
regulations. In the event that the STB shall, at any time hereafter by
final order, find that compliance with law requires any other or
different action by the Trustee than is provided herein, the Trustee
shall act in accordance with such final order instead of the provisions
of this Trust Agreement.
17. Counterparts--This Trust Agreement may be executed in
counterparts, each of which shall constitute an original, and one of
which shall be held by each of the Parent and the Acquiror and two shall
be held by the Trustee, one of which shall be subject to inspection by
holders of Trust Certificates on reasonable notice during business hours.
18. Filing With the STB--A copy of this Agreement and any
amendments or modifications thereto shall be filed with the STB by the
Acquiror.
19. Successors and Assigns--This Trust Agreement shall be binding
upon the successors and assigns to the parties hereto, including without
limitation successors to the Acquiror and the Parent by merger,
consolidation or otherwise. The parties agree that the Company shall be
an express third party beneficiary of this Trust Agreement. Except as
otherwise expressly set forth herein, any consent required from the
Company hereunder shall be granted or withheld in the Company's sole
discretion.
20. Succession of Functions--The term "STB" includes any successor
agency or governmental department that is authorized to carry out the
responsibilities now carried out by the STB with respect to the
consideration of the consistency with the public interest of rail mergers
and combinations, the regulation of voting trusts in respect of the
acquisition of securities of rail carriers or companies controlling them,
and the exemption of approved rail mergers and combinations from the
antitrust laws.
21. Notices--Any notice which any party hereto may give to the
other hereunder shall be in writing and shall be given by hand delivery,
or by first class registered mail, or by overnight courier service, or by
facsimile transmission confirmed by one of the aforesaid methods, sent,
If to Purchaser or Acquiror, to
Norfolk Southern Corporation
Three Commercial Place
Norfolk, Virginia 23510
Attention: Vice President--Law
If to the Trustee, to
First American National Bank
First American Center
300 Union Street
Nashville, Tennessee 37237-0404
Attention: Corporate Trust Department
And if to the holders of Trust Certificates, to them at their
addresses as shown on the records maintained by the Trustee.
22. Remedies--Each of the parties hereto acknowledges and agrees
that in the event of any breach of this Agreement, each non-breaching
party would be irreparably and immediately harmed and could not be made
whole by monetary damages. It is accordingly agreed that the parties
hereto (a) will waive, in any action for specific performance, the
defense of adequacy of a remedy at law and (b) shall be entitled, in
addition to any other remedy to which they may be entitled at law or in
equity, to an order compelling specific performance of this Agreement in
any action instituted in any state or federal court sitting in Nashville,
Tennessee. Each party hereto consents to personal jurisdiction in any
such action brought in any state or federal court sitting in
Philadelphia, Pennsylvania.
IN WITNESS WHEREOF, Norfolk Southern Corporation and Atlantic
Acquisition Corporation have caused this Trust Agreement to be executed
by their authorized officers and their corporate seals to be affixed,
attested by their Secretaries or Assistant Secretaries, and the Bank has
caused this Trust Agreement to be executed by one of its Vice Presidents
and its corporate seal to be affixed, attested to by one of its Vice
Presidents, all as of the day and year first above written.
NORFOLK SOUTHERN CORPORATION
ATTEST:
By:_______________________________
Title:____________________________
ATLANTIC ACQUISITION CORPORATION
ATTEST:
By:________________________________
Title:_____________________________
FIRST AMERICAN NATIONAL BANK
ATTEST:
By:_________________________________
Title:______________________________
EXHIBIT A
No. Shares
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK,
$1.00 PAR VALUE
OF
CONRAIL INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF PENNSYLVANIA
THIS IS TO CERTIFY that will be entitled, on the surrender of this
Certificate, to receive on the termination of the Voting Trust Agreement
hereinafter referred to, or otherwise as provided in Paragraph 8 of said
Voting Trust Agreement, a certificate or certificates for shares of the
Common Stock, $1.00 par value, of Conrail Inc. (the "Company"). This
Certificate is issued pursuant to, and the rights of the holder hereof
are subject to and limited by, the terms of a Voting Trust Agreement,
dated as of , 1997, executed by Norfolk Southern Corporation, a Virginia
corporation, Atlantic Acquisition Corporation, a Pennsylvania
corporation, and First American National Bank, as Voting Trustee, a copy
of which Voting Trust Agreement is on file in the registered office of
said corporation at First American Center, 3000 Union Street, Nashville,
Tennessee 37237-0404, and open to inspection of any stockholder of the
Company and the holder hereof. The Voting Trust Agreement, unless earlier
terminated (or extended) pursuant to the terms thereof, will terminate on
, , so long as no violation of 49 U.S.C. Section
11323 will result from such termination.
The holder of this Certificate shall be entitled to the benefits of
said Voting Trust Agreement, including the right to receive payment equal
to the cash dividends, if any, paid by the Company with respect to the
number of shares represented by this Certificate.
This Certificate shall be transferable only on the books of the
undersigned Voting Trustee or any successor, to be kept by it, on
surrender hereof by the registered holder in person or by attorney duly
authorized in accordance with the provisions of said Voting Trust
Agreement, and until so transferred, the Voting Trustee may treat the
registered holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof assents to all the
provisions of, and becomes a party to, said Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused this Certificate
to be signed by its officer duly authorized.
Dated:
THE BANK
By Authorized Officer
FORM OF BACK OF VOTING TRUST CERTIFICATE
FOR VALUE RECEIVED hereby sells, assigns, and transfers unto the
within Voting Trust Certificate and all rights and interests represented
thereby, and does hereby irrevocably constitute and appoint
Attorney to transfer said Voting Trust Certificate on the books of the within
mentioned Voting Trustee, with full power of substitution in the
premises.
Dated:
In the Presence of:
EXHIBIT B
No. Shares
VOTING TRUST CERTIFICATE
FOR
COMMON STOCK,
$1.00 PAR VALUE
INCORPORATED UNDER THE LAWS OF THE STATE OF PENNSYLVANIA
THIS IS TO CERTIFY that will be entitled, on the surrender of this
Certificate, to receive on the termination of the Voting Trust Agreement
hereinafter referred to, or otherwise as provided in Paragraph 8 of said
Voting Trust Agreement, a certificate or certificates for shares of the
Common Stock, $ par value, of , a Pennsylvania corporation (the
"Company"). This Certificate is issued pursuant to, and the rights of the
holder hereof are subject to and limited by, the terms of a Voting Trust
Agreement, dated as of , 1997, executed by Norfolk Southern Corporation,
a Virginia corporation, Atlantic Acquisition Corporation, a Pennsylvania
corporation, and First American National Bank, as Voting Trustee, a copy
of which Voting Trust Agreement is on file in the registered office of
said corporation at First American Center, 300 Union Street, Nashville,
Tennessee 37237-0404, and open to inspection of any stockholder of the
Company and the holder hereof. The Voting Trust Agreement, unless earlier
terminated (or extended) pursuant to the terms thereof, will terminate on
, , so long as no violation of 49 U.S.C.
Section 11323 will result from such termination.
The holder of this Certificate shall be entitled to the benefits of
said Voting Trust Agreement, including the right to receive payment equal
to the cash dividends, if any, paid by the Company with respect to the
number of shares represented by this Certificate.
This Certificate shall be transferable only on the books of the
undersigned Voting Trustee or any successor, to be kept by it, on
surrender hereof by the registered holder in person or by attorney duly
authorized in accordance with the provisions of said Voting Trust
Agreement, and until so transferred, the Voting Trustee may treat the
registered holder as the owner of this Voting Trust Certificate for all
purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof assents to all the
provisions of, and becomes a party to, said Voting Trust Agreement.
IN WITNESS WHEREOF, the Voting Trustee has caused this Certificate
to be signed by its officer duly authorized.
Dated:
THE BANK
By Authorized Officer
FORM OF BACK OF VOTING TRUST CERTIFICATE
FOR VALUE RECEIVED hereby sells, assigns, and transfers unto the
within Voting Trust Certificate and all rights and interests represented
thereby, and does hereby irrevocably constitute and appoint
Attorney to transfer said Voting Trust Certificate on the books of the within
mentioned Voting Trustee, with full power of substitution in the
premises.
Dated:
In the Presence of:
EXHIBIT C
NS-Supported Directors' Undertaking
UNDERTAKING
THIS UNDERTAKING, dated February __, 1997, by and between Norfolk
Southern Corporation, a Virginia corporation ("NS"), and , an individual
("NS-Supported Director").
W I T N E S S E T H:
WHEREAS, Atlantic Investment Company, a Pennsylvania corporation
and a wholly owned subsidiary of NS ("AIC"), owns on the date hereof 100
shares of common stock, $1.00 par value ("Common Shares"), of Conrail
Inc., a Pennsylvania corporation ("CRI");
WHEREAS, NS and AIC will solicit proxies in connection with the
election of certain CRI directors at a meeting of CRI shareholders
currently scheduled to be held on December 19, 1997 including
postponement or adjournment thereof and will cause the proxies obtained
to be voted in favor of certain directors who favor the effectuation of a
merger or other combination of Atlantic Acquisition Corporation a wholly
owned subsidiary of NS ("Atlantic"), or another affiliate of NS with CRI;
WHEREAS, NS wishes that all NS-Supported Directors have executed
this undertaking to promptly to resign their positions in the event the
Surface Transportation Board (the "STB") issues an order denying, or
approving subject to conditions unacceptable to NS, any application or
petition by NS, Atlantic or other affiliates to merge or combine with or
exercise control over Consolidated Rail Corporation, a Pennsylvania
corporation ("CRC"), and such order becomes final after judicial review
or failure to appeal; and
WHEREAS, the undersigned NS-Supported Director is willing to act as
Director pursuant to the terms of this Undertaking,
NOW THEREFORE, the parties hereto agree as follows:
1. Representations -- NS-Supported Director hereby represents that
he/she is not an officer, director or employee of NS, Atlantic or AIC.
2. Best Efforts -- Upon election to the CRI Board of Directors,
NS-Supported Director agrees to use his/her best efforts to cause the
voting stock of CRC promptly to be placed in a voting trust.
3. No Influence or Exercise of Control -- NS-Supported Director
agrees not to attempt to influence or exercise any control over the
management or operations of CRC except upon the delivery of a certified
copy of an order of the STB that (i) approves or exempts the acquisition
of control of CRC by Atlantic, NS or any of their affiliates or (ii)
approves or exempts a merger or similar business combination between CRC
and Atlantic, NS or any of their affiliates, or, in the event that
Subtitle IV of Title 49 of the United States Code, or other controlling
law, is amended to allow Atlantic, NS or their affiliates to acquire
control of the Company without obtaining STB or other governmental
approval, upon the delivery of an opinion of independent counsel selected
by NS-Supported Director that no order of the STB or other governmental
authority is required.
4. Resignation -- NS-Supported Director agrees to resign his/her
position in the event the STB issues an order denying, or approving
subject to conditions unacceptable to NS, any application or petition by
NS, Atlantic or their affiliates to merge with or exercise control over
CRC, and such order becomes final after judicial review or failure to
appeal. NS agrees to promptly notify NS-Supported Director upon the
issuance of such an STB order.
NORFOLK SOUTHERN CORPORATION
ATTEST:
By:________________________________
Title:_____________________________
NS-SUPPORTED DIRECTOR
ATTEST:
By:_________________________________
Name:_______________________________
Atlantic Investment Company
Three Commercial Place
Norfolk, Virginia 23510-2191
February 10, 1997
BY HAND
Conrail Inc.
2001 Market Street
Two Commerce Square
Philadelphia, Pennsylvania 19101
Attention: Corporate Secretary
Re: 1997 Annual Meeting of Shareholders
Dear Sirs:
In accordance with Article II, Section 2.15, and Article III,
Section 3.03 of the Amended and Restated By-Laws (the "By-Laws") of
Conrail Inc. (the "Company"), Atlantic Investment Company ("Atlantic"), a
Delaware corporation and a wholly-owned subsidiary of Norfolk Southern
Corporation ("Norfolk Southern"), hereby notifies you of its intent, at
the 1997 Annual Meeting of Shareholders of the Company, including any
postponement or adjournment thereof (the "Annual Meeting"), to (i)
nominate the persons listed in Schedule A hereto for election as
directors of the Company (each, a "Nominee", and collectively, the
"Nominees"), (ii) introduce a proposal substantially in the form set
forth in Schedule B hereto to amend Section 3.01 of the By-Laws to
declassify the Company's Board of Directors (the "Company Board"), (iii)
introduce a proposal substantially in the form set forth in Schedule C
hereto which would effect the removal of all of the directors of the
Company from the Company Board, other than the individuals nominated to
the Company Board by Atlantic and the individuals named in Schedule C
hereto, and (iv) introduce a proposal substantially in the form set forth
in Schedule D hereto to amend Section 3.01 of the By-Laws to decrease
the size of the Company Board to a total of eight directors. This
letter, Schedules A, B, C and D hereto and all enclosures herewith are
referred to as the "Notice."
In connection with the solicitation of proxies to attempt to
effect the Shareholder Business (as defined below), Norfolk Southern and
Atlantic will prepare and utilize their own proxy materials (the "Proxy
Materials") in accordance with applicable law.
I. Article II Information.
The information specified in clauses (1) through (6) of
Article II, Section 2.15 of the By-Laws is set forth below:
(1) At the Annual Meeting, Atlantic intends to (i) nominate
the individuals named in Schedule A hereto for election as directors of
the Company, (ii) introduce a proposal substantially in the form set
forth in Schedule B hereto to amend Section 3.01 of the By-Laws to
declassify the Company Board, (iii) introduce a proposal substantially in
the form set forth in Schedule C hereto which would effect the removal of
all of the directors of the Company from the Company Board, other than
the individuals nominated to the Company Board by Atlantic and the
individuals named in Schedule C hereto, and (iv) introduce a proposal
substantially in the form set forth in Schedule D hereto to amend Section
3.01 of the By-Laws to decrease the size of the Company Board to a total
of eight directors (collectively, the "Shareholder Business").
Atlantic seeks to conduct the respective items included in
the Shareholder Business in order to replace a majority of the members of
the Company Board (as currently constituted) to include at least a
majority of directors that are committed to evaluate acquisition
proposals for the Company with a view towards maximizing value for
Company shareholders and to reduce the size of the Company Board to a
more manageable size. Each of the Nominees has stated that such Nominee
is committed to seek the most advantageous transaction for holders of
shares of common stock, par value $1.00 per share (the "Common Shares"),
of the Company and shares of ESOP Convertible Junior Preferred Stock,
without par value (the "ESOP Preferred Shares" and, collectively with the
Common Shares, the "Shares"), of the Company, and will evaluate fairly
and impartially all acquisition or other proposals received by the
Company, whether made by Norfolk Southern, by CSX Corporation or by any
other potential acquiror and whether now pending or subsequently made.
Based on the pending transaction proposals by each of Norfolk Southern
and CSX, it is currently contemplated that the Nominees will support
Norfolk Southern's proposal.
(2) Atlantic is a holder of record of 100 Common Shares.
Accordingly, Atlantic is entitled to vote at the Annual Meeting and
intends to appear in person or by proxy at the Annual Meeting to bring
the Shareholder Business.
(3) The name and address of the shareholder who intends to
conduct the Shareholder Business as they should appear on the Company's
books are Atlantic Investment Company, P.O. Box 3813, Norfolk, Virginia
23514. As the owner of the entire equity interest in Atlantic, Norfolk
Southern may be deemed the beneficial owner of all the Common Shares
owned beneficially and of record by Atlantic. Accordingly, the
Shareholder Business may be deemed to be proposed by Norfolk Southern.
Norfolk Southern's address is Three Commercial Place, Norfolk, Virginia
23510-2191.
(4) As of the date hereof, Atlantic is the record owner of
100 Common Shares. In addition, as a result of the acceptance for payment
by Atlantic Acquisition Corporation ("AAC"), a wholly owned subsidiary of
Norfolk Southern, of 8,200,000 Shares pursuant to AAC's tender offer for
up to 8,200,000 Shares, Norfolk Southern may be deemed the beneficial
owner of such 8,200,000 Common Shares. However, it is intended that the
record ownership of all of such 8,200,000 Common Shares will be held in
the name of First American National Bank, as voting trustee, pursuant to
a Voting Trust created under a Voting Trust Agreement among AAC, Norfolk
Southern and First American National Bank.
(5) Atlantic has a material interest in the Shareholder
Business in view of Norfolk Southern's ongoing efforts to acquire control
of, and the entire equity interest in, the Company.
(6) The information set forth in paragraph number (4) above
is incorporated herein by reference. Norfolk Southern has agreed to
indemnify each Nominee against certain liabilities and expenses in
connection with the Nominee's agreement to serve as a Nominee. Norfolk
Southern has not agreed to indemnify the Nominees against any acts or
omissions by them in their capacities as directors of the Company, if
elected. In agreeing to indemnify the Nominees as described above,
Norfolk Southern has expressly acknowledged that, as directors of the
Company and as Nominees for election to the Company Board, the Nominees
will exercise their independent judgment and will not be required to
reflect the views of Norfolk Southern. A copy of the form of agreement
between Norfolk Southern and each Nominee is enclosed herewith and is
incorporated herein by reference.
Each of the Nominees has agreed, among other things, to
resign his or her position as a director of the Company in the event that
the Surface Transportation Board issues an order denying, or approving
subject to conditions unacceptable to Norfolk Southern, any application
or petition by Norfolk Southern, AAC or their affiliates to merge with or
exercise control over Consolidated Rail Corporation, and such order
becomes final after judicial review or failure to appeal. A copy of the
form of Undertaking entered into by each Nominee with Norfolk Southern is
enclosed herewith and incorporated herein by reference.
II. Article III Information.
The information specified in clauses (1) through (3) of
Article III, Section 3.03 of the By-Laws is set forth below:
(1) The following persons are to be nominated for election as
directors at the Annual Meeting:
George A. Butler
Stephen P. Lamb
Mary Patterson McPherson
Bernard C. Watson
J. Roger Williams, Jr.
(A) The name, age, business address and residence
address of each Nominee is set forth in Schedule A hereto.
(B) The principal occupation or employment of each
Nominee is set forth in Schedule A hereto.
(C) The class and number of Shares beneficially owned
by each Nominee is set forth in Schedule A hereto.
(D) The information set forth in paragraphs (1) and (6)
of Section I of this Notice is incorporated herein by reference.
Except as set forth therein, no Nominee has any arrangement or
understanding with Norfolk Southern, Atlantic or any other person
pursuant to which the nominations are to be made.
(E) Set forth in Schedule A hereto is all other
information regarding each Nominee as of the date of the Notice as
would be required to be disclosed in solicitations of proxies for
election of directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended.
(F) Each Nominee has consented to serve as a director
of the Company if so elected. Enclosed herewith is a copy of the
letter from each Nominee consenting to be named in the Notice and
in the Proxy Materials and to serve as a director of the Company
if so elected at the Annual Meeting.
(2) (A) At the Annual Meeting, Atlantic intends to
conduct the Shareholder Business. Atlantic's address as it
should appear on the Company's books is P.O. Box 3813,
Norfolk, Virginia 23514.
(B) As of the date hereof, Atlantic is the record owner
of 100 Common Shares. Accordingly, Atlantic is entitled to vote at
the Annual Meeting and intends to appear in person or by proxy at
the Annual Meeting to bring the Shareholder Business.
(C) The information set forth in paragraph (4) of
Section I of this Notice is incorporated herein by reference.
(3) Atlantic is the record and beneficial owner proposing the
Shareholder Business. However, Norfolk Southern, as the owner of the
entire equity interest in Atlantic, may be deemed to be the beneficial
owner of Atlantic's Common Shares. The information set forth in paragraph
(2)(A)-(C) above is incorporated herein by reference. Norfolk Southern's
address is Three Commercial Place, Norfolk, Virginia 23510-2191.
It is our understanding based upon public filings by the
Company that the Company Board has thirteen directorships, of which five
are designated as Class I, four are designated as Class II and four are
designated as Class III, and that two of the Class I directorships are
vacant. It is also our understanding that shareholders of the Company
will be asked to elect between three and five Class I directors at the
Annual Meeting. Atlantic reserves the right to (i) nominate alternate
nominees to fill a director's position if any of the Nominees becomes
unavailable to stand for election to the Company Board, (ii) nominate
additional nominees to fill any director positions created by the Company
Board prior to or at the Annual Meeting, (iii) nominate additional
nominees if the Company takes or announces any actions that are designed
to, or have the effect of, disqualifying any or all of the Nominees, (iv)
designate any nominees as nominees with respect to any class or classes
of directors to be elected at the Annual Meeting, (v) increase, decrease
or otherwise modify the number and names of the directors which Atlantic
seeks to remove from the Company Board, and (vi) propose other or
different changes to the By-Laws in the event that the Company takes or
proposes to take action to amend the By-Laws.
The Notice fully complies with the provisions of the By-Laws.
Any claim that the Notice is in any way defective should be addressed to
the undersigned so that there is adequate opportunity to address such
claim in a timely fashion. The giving of the Notice is not an admission
that the By-Law procedures are legal, valid or binding, and Norfolk
Southern and Atlantic reserve the right to challenge their validity in
any appropriate forum.
Please sign the enclosed copy of this Notice in the space
provided below and return it to the messenger.
Very truly yours,
ATLANTIC INVESTMENT COMPANY
By: /s/ William J. Romig
William J. Romig
President
cc: Robert A. Kindler, Esq.
Cravath, Swaine & Moore
Schedule A
(Attached to the Notice dated February 10, 1997)
The following sets forth certain information as of the date
of the Notice concerning each Nominee that is, together with the
information elsewhere in the Notice, required pursuant to Article II,
Section 2.15 and Article III, Section 3.03 of the By-Laws. Any such
information with respect to an individual Nominee has been furnished by
such individual Nominee. Each of the Nominees listed and described herein
has consented to serve as a director of the Company, if elected.
Capitalized terms used herein and not otherwise defined herein shall have
the meanings ascribed to such terms elsewhere in the Notice.
Unless otherwise indicated, the following statements relate
to each Nominee and any "associate" of such Nominee, as such term is
defined in the Securities Exchange Act of 1934, as amended, and are true,
complete and correct to the best of each such Nominee's knowledge:
1. No Nominee, directly or indirectly, is the beneficial or
record owner of any securities of the Company or any subsidiary of the
Company.
2. During the past five years (ten years, in the case of c.),
no Nominee:
a. has had a petition under the Federal bankruptcy laws or
any state insolvency law filed by or against him, or a receiver, fiscal
agent or similar officer appointed by a court for the business or
property of the Nominee, or any partnership in which he was a general
partner at or within two years before the time of such filing, or any
corporation or business association of which he was an executive officer
at or within two years before the time of such filing;
b. was convicted in a criminal proceeding or is a named
subject of a pending criminal proceeding (excluding traffic violations
and other minor offenses);
c. was the subject of any order, judgment or decree, not
subsequently reversed, suspended or vacated, of any court of competent
jurisdiction, permanently of temporarily enjoining him from or otherwise
limiting, the following activities:
(i) acting as a futures commission merchant, introducing
broker, commodity trading advisor, commodity pool operator, floor broker,
leverage transaction merchant, any other person regulated by the
Commodity Futures Trading Commission, or an associated person of any of
the foregoing, or as an investment adviser, underwriter, broker or dealer
in securities, or as an affiliated person, director or employee of any
investment company, bank, savings and loan association or insurance
company, or engaging in or continuing any conduct or practice in
connection with any activity;
(ii) engaging in any type of business practice; or
(iii) engaging in any activity in connection with the
purchase or sale of any security or commodity or in connection with any
violation of federal or state securities laws or federal commodities
laws;
d. been the subject of any order, judgment or decree, not
subsequently reversed, suspended or vacated, of any federal or state
authority barring, suspending or otherwise limiting for more than 60 days
the right of the Nominee to engage in any activity described in paragraph
(c)(i) above, or to be associated with persons engaged in any such
activity;
e. been found by a court of competent jurisdiction in a civil
action or by the Securities and Exchange Commission to have violated any
federal or state securities law, and the judgment in such civil action or
finding by the Securities and Exchange Commission has not been
subsequently reversed, suspended or vacated; or
f. been found by a court of competent jurisdiction in a civil
action or by the Commodity Futures Trading Commission to have violated
any federal commodities law, and the judgment in such civil action or
finding by the Commodity Futures Trading Commission has not been
subsequently reversed, suspended or vacated.
4. There has been no transaction, or series of similar
transactions, since the beginning of the Company's last fiscal year, or
any currently proposed transaction, or series of similar transactions, to
which the Company or any of its subsidiaries was or is to be a party, in
which the amount involved exceeds $60,000 and in which any Nominee had,
or will have, a direct or indirect material interest.
5. The information set forth in paragraphs (1) and (6) of
Section I of the Notice is incorporated herein by reference. Except as
set forth therein or as described below, no Nominee has any arrangement
or understanding with any person (1) with respect to any future
employment by the Company or its affiliates, or (2) with respect to any
future transactions to which the Company or any of its affiliates will or
may be a party. In the event that a Nominee is elected to the Company
Board, such Nominee will be entitled to compensation and indemnification
as a director of the Company in accordance with the Company's standard
arrangements for remuneration and indemnification of non-officer
directors.
6. No Nominee has been indebted to the Company or any of its
subsidiaries at any time since the beginning of the Company's last fiscal
year.
7. No relationship set forth in Item 404(b) of Regulation S-K
between any Nominee and the Company or between any entity with which any
Nominee is affiliated and the Company exists or has existed during the
Company's last fiscal year, or is proposed to exist during the Company's
current fiscal year.
8. Except as set forth below, no Nominee holds a directorship
in any company with a class of securities registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended, or subject to the
requirements of Section 15(d) of that Act or any company registered as an
investment company under the Investment Company Act of 1940.
9. Except as set forth below, no Nominee is a party to any
material pending legal proceedings to which the Company or any of its
subsidiaries is an adverse party and no Nominee has a material interest
in any material pending legal proceedings adverse to the Company or any
of its subsidiaries. Dilworth, Paxson, Kalish & Kauffman, the law firm
for which Mr. Williams serves as of counsel, currently represents the
Commonwealth of Pennsylvania in a civil action against the Company
pending in the Court of Common Pleas of Dauphin County, PA.
10. No Nominee is, or was during the past year, a party to
any contract, arrangements or understandings with any person with respect
to any securities of the Company, including, but not limited to, joint
ventures, loan or option arrangements, puts or calls, guarantees against
loss or guarantees of profit, division of losses or profits, or the
giving or withholding of proxies.
NOMINEE
a) Name: George A. Butler
Age: 68
Business Address : N/A (Retired)
Residence Address: 4 Bugle Lane
Blue Ball, PA 19422
b) Principal Occupation or Employment: Retired; former
President of CoreStates Financial Corporation
c) Class, Series and Number of Shares of Capital Stock of
the Company Beneficially Owned: None
d) Certain other information relating to this Nominee that is required
to be disclosed in solicitations of proxies for election of
directors pursuant to the Rules and Regulations of the Securities
and Exchange Commission under Section 14 of the Securities Exchange
Act of 1934, as amended:
Present Principal Occupation or Employment
and Five-Year Employment History:
Occupation, Principal Ending Dates
Position, Names & Address Business of of Employment,
Office or of Corporation Corporation or Office or
Employment or Occupation Organization Position Held
President CoreStates Banking and Retired on
Financial Corp. financial 12/31/91
institution
All positions and offices with the Company held by the Nominee: None.
Directorships held in companies with a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended, or subject to the requirements of Section 15(d) of that Act or
companies registered as investment companies under the Investment Company
Act of 1940:
Betz Dearborn, Inc.
NOMINEE
e) Name: Stephen P. Lamb
Age: 47
Business Address : Lamb & Bouchard
222 Delaware Avenue, Suite 1102
P.O. Box 29
Wilmington, Delaware 19899
Residence Address: 128 School Road
Wilmington, Delaware 19803
f) Principal Occupation or Employment: Attorney and
Partner in the law firm of Lamb & Bouchard.
g) Class, Series and Number of Shares of Capital Stock of
the Company Beneficially Owned: None
h) Certain other information relating to this Nominee that is required
to be disclosed in solicitations of proxies for election of
directors pursuant to the Rules and Regulations of the Securities
and Exchange Commission under Section 14 of the Securities Exchange
Act of 1934, as amended:
Present Principal Occupation or Employment
and Five-Year Employment History:
Occupation, Principal Ending Dates
Position, Names & Address Business of of Employment,
Office or of Corporation Corporation or Office or
Employment or Occupation Organization Position Held
President Lamb & Bouchard Private practice Since 5/1/96
222 Delaware Ave. of law
Suite 1102
P.O. Box 29
Wilmington, DE
Principal Law Offices of Private practice From 3/1/95
Stephen P. Lamb, of law through 4/30/96
P.A.
Partner Skadden, Arps, Private practice From 1992 through
Slate, Meagher of law 2/28/95
& Flom
All positions and offices with the Company held by the Nominee: None.
Directorships held in companies with a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended, or subject to the requirements of Section 15(d) of that Act or
companies registered as investment companies under the Investment Company
Act of 1940: None
NOMINEE
i) Name: Mary Patterson McPherson
Age: 62
Business Address : Taylor Hall
Bryn Mawr College
Bryn Mawr, PA 19010
Residence Address: 907 Wyndon Avenue
Bryn Mawr, PA 19010
j) Principal Occupation or Employment: President of Bryn Mawr College
(through June 1997; will become Senior Program Officer of the
Andrew W. Mellon Foundation beginning October 1997)
k) Class, Series and Number of Shares of Capital Stock of
the Company Beneficially Owned: None
l) Certain other information relating to this Nominee that is required
to be disclosed in solicitations of proxies for election of
directors pursuant to the Rules and Regulations of the Securities
and Exchange Commission under Section 14 of the Securities Exchange
Act of 1934, as amended:
Present Principal Occupation or Employment
and Five-Year Employment History:
Occupation, Principal Ending Dates
Position, Names & Address Business of of Employment,
Office or of Corporation Corporation or Office or
Employment or Occupation Organization Position Held
President Bryn Mawr College Education Since 1978
Bryn Mawr, PA
19010
All positions and offices with the Company held by the Nominee: None.
Directorships held in companies with a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended, or subject to the requirements of Section 15(d) of that Act or
companies registered as investment companies under the Investment Company
Act of 1940:
Dayton Hudson Corporation
Ms. McPherson is also a director of The Philadelphia Contributionship.
NOMINEE
m) Name: Bernard C. Watson
Age: 68
Business Address : 1314 Chestnut Street - 15th Floor
Philadelphia, PA 19107
Residence Address: 473 Copper Beech Circle
Elkins Park, PA 19027
n) Principal Occupation or Employment: Chairman, Board of
Directors, HMA Foundation
o) Class, Series and Number of Shares of Capital Stock of the
Company Beneficially Owned: None
p) Certain other information relating to this Nominee that is required
to be disclosed in solicitations of proxies for election of
directors pursuant to the Rules and Regulations of the Securities
and Exchange Commission under Section 14 of the Securities Exchange
Act of 1934, as amended:
Present Principal Occupation or Employment
and Five-Year Employment History:
Occupation, Principal Ending Dates
Position, Names & Address Business of of Employment,
Office or of Corporation Corporation or Office or
Employment or Occupation Organization Position Held
Chairman, HMA Foundation Non-profit Since 1/1/94
Board of 1314 Chestnut St. organization
Directors Philadelphia, PA supporting
health care in
Philadelphia area
President The William Penn Non-profit From 1981 through 1993
Foundation organization
Two Logan Square supporting
100 N. 18th St. cultural,
Philadelphia, PA environmental
and health care in
Philadelphia area
Vice Temple University Educational From 1976
President, 1801 N. Broad St. institution through 1981
Academic Philadelphia, PA
Admini-
tration
All positions and offices with the Company held by the Nominee: None.
Directorships held in companies with a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended, or subject to the requirements of Section 15(d) of that Act or
companies registered as investment companies under the Investment Company
Act of 1940:
Comcast Corporation
Dr. Watson is also a director of The Philadelphia Contributionship, First
Union North (Advisory Board of First Union Bank), and AAA Mid-Atlantic.
NOMINEE
q) Name: J. Roger Williams, Jr.
Age: 60
Business Address : Dilworth, Paxson, Kalish & Kauffman
3200 Mellon Bank Center
1735 Market Street
Philadelphia, PA 19103
Residence Address: 464 Glyn Wynne Road
Haverford, PA 19041
r) Principal Occupation or Employment: Of Counsel to the law firm of
Dilworth, Paxson, Kalish & Kauffman
s) Class, Series and Number of Shares of Capital Stock of
the Company Beneficially Owned: None
t) Certain other information relating to this Nominee that is required
to be disclosed in solicitations of proxies for election of
directors pursuant to the Rules and Regulations of the Securities
and Exchange Commission under Section 14 of the Securities Exchange
Act of 1934, as amended:
Present Principal Occupation or Employment
and Five-Year Employment History:
Occupation, Principal Ending Dates
Position, Names & Address Business of of Employment,
Office or of Corporation Corporation or Office or
Employment or Occupation Organization Position Held
Of Counsel Dilworth, Paxson, Private practice Since 1991
Kalish & Kauffman of law
3200 Market St.
Philadelphia, PA
All positions and offices with the Company held by the Nominee: None.
Directorships held in companies with a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended, or subject to the requirements of Section 15(d) of that Act or
companies registered as investment companies under the Investment Company
Act of 1940: None
Schedule B
(Attached to the Notice dated February 10, 1997)
RESOLVED, that pursuant to Article XII, Section 12.01 of the
By-Laws and Article EIGHT of the Articles of Incorporation of the
Company, the Amended and Restated By-Laws of the Company are hereby
amended by deleting the second, third, fourth, fifth and sixth sentences
of Section 3.01 thereof and adding two new sentences in replacement
thereof which shall read in its entirety as follows:
"Except as provided in Section 3.04 of these By-Laws, directors
shall be elected by a plurality of the votes cast at annual meetings of
the shareholders and each director shall serve until his successor is
duly elected and qualified, or until his earlier resignation or removal.
Notwithstanding any other provisions of these By-Laws, the Board shall
not have the power to alter or amend these By-Laws to classify the Board
in respect of the time for which the directors shall severally hold
office."
Schedule C
(Attached to the Notice dated February 10, 1997)
RESOLVED, that, with the exception of the individuals nominated for
election to the Company's Board of Directors by Atlantic Investment
Company and the individuals identified below, each of the members of the
Company's Board of Directors be, and each of them hereby is, removed as a
director of the Company, effective immediately:
Daniel B. Burke
David B. Lewis
John C. Marous
Schedule D
(Attached to the Notice dated February 10, 1997)
RESOLVED, that pursuant to Article XII, Section 12.01 of the
By-Laws and Article EIGHT of the Articles of Incorporation of the
Company, the Amended and Restated By-Laws of the Company are hereby
amended by deleting the first sentence of Section 3.01 thereof and adding
a new first sentence in replacement thereof which shall read in its
entirety as follows:
"The Board shall consist of eight members."
[Form of Indemnity Agreement]
Norfolk Southern Corporation
Atlantic Investment Company
Three Commercial Place
Norfolk, Virginia 23510-2191
INDEMNITY LETTER
[NOMINEE]
Dear __________:
Reference is made to your consent to be included as a member
of a slate of directors (a "Nominee") proposed by Atlantic Investment
Company ("Atlantic"), a wholly owned subsidiary of Norfolk Southern
Corporation, for election to the Board of Directors of Conrail Inc.
("Conrail") at Conrail's 1997 Annual Meeting of Shareholders.
The undersigned hereby agree to indemnify and hold you
harmless from and against any and all losses, claims, damages,
liabilities and expenses, or actions in respect thereof, relating to or
arising out of or based upon your being a Nominee or a "participant in a
solicitation" (as defined in the Rules and Regulations under the
Securities Exchange Act of 1934, as amended); provided however, that the
undersigned will not be responsible for indemnifying you (i) for any
actions or failures to act by you in your capacity as a director of
Conrail, if elected, (ii) for any losses, claims, damages, liabilities or
expenses that are determined by final judgment of a court of competent
jurisdiction to result from your gross negligence, bad faith or wilful
misconduct or (iii) for the payment in settlement of any claim made
without the written consent of the undersigned. The undersigned also
hereby agree that the foregoing indemnity covers the fees and expenses of
any counsel retained by you to advise you in connection with the matters
covered by this Indemnity Letter and your involvement in any related
litigation.
In agreeing to indemnify you as described above, the
undersigned expressly acknowledges that, as a director of Conrail and as
a nominee for election to the Conrail Board of Directors, you will
exercise your independent judgment and will not be required to reflect
the views of the undersigned.
This Indemnity Letter shall be governed by the laws of the
State of New York.
Very truly yours,
NORFOLK SOUTHERN CORPORATION
By:
Name:
Title:
ATLANTIC INVESTMENT COMPANY
By:
Name:
Title:
ACCEPTED:
_______________________
[NOMINEE]
[Form of Undertaking]
UNDERTAKING
THIS UNDERTAKING, dated February , 1997, by and between Norfolk
Southern Corporation, a Virginia corporation ("NS"), and
____________________, an individual ("NS-Supported Director").
W I T N E S S E T H:
WHEREAS, Atlantic Investment Company, a Pennsylvania corporation
and a wholly owned subsidiary of NS ("AIC"), owns on the date hereof 100
shares of common stock, $1.00 par value ("Common Shares"), of Conrail
Inc., a Pennsylvania corporation ("CRI");
WHEREAS, NS and AIC will solicit proxies in connection with the
election of certain CRI directors at a meeting of CRI shareholders
currently scheduled to be held on December 19, 1997 including any
postponement or adjournment thereof and will cause the proxies obtained
to be voted in favor of certain directors who favor the effectuation of a
merger or other combination of Atlantic Acquisition Corporation, a
Pennsylvania corporation and a wholly owned subsidiary of NS
("Atlantic"), or another affiliate of NS, with CRI;
WHEREAS, NS wishes that all NS-Supported Directors have executed
this undertaking to promptly resign their positions in the event the
Surface Transportation Board (the "STB") issues an order denying, or
approving subject to conditions unacceptable to NS, any application or
petition by NS, Atlantic or other affiliates to merge or combine with or
exercise control over Consolidated Rail Corporation, a Pennsylvania
corporation ("CRC"), and such order becomes final after judicial review
or failure to appeal; and
WHEREAS, the undersigned NS-Supported Director is willing to act as
Director pursuant to the terms of this Undertaking.
NOW THEREFORE, the parties hereto agree as follows:
1. Representations -- NS-Supported Director hereby represents that
he/she is not an officer, director or employee of NS, Atlantic or AIC.
2. Best Efforts -- Upon election to the CRI Board of Directors,
NS-Supported Director agrees to use his/her best efforts to cause the
voting stock of CRC promptly to be placed in a voting trust.
3. No Influence or Exercise of Control -- NS-Supported Director
agrees not to attempt to influence or exercise any control over the
management or operations of CRC except upon the delivery of a certified
copy of an order of the STB that (i) approves or exempts the acquisition
of control of CRC by Atlantic, NS or any of their affiliates or (ii)
approves or exempts a merger or similar business combination between CRC
and Atlantic, NS or any of their affiliates, or, in the event that
Subtitle IV of Title 49 of the United States Code, or other controlling
law, is amended to allow Atlantic, NS or their affiliates to acquire
control of the Company without obtaining STB or other governmental
approval, upon the delivery of an opinion of independent counsel selected
by NS-Supported Director that no order of the STB or other governmental
authority is required.
4. Resignation -- NS-Supported Director agrees to resign his/her
position in the event the STB issues an order denying, or approving
subject to conditions unacceptable to NS, any application or petition by
NS, Atlantic or their affiliates to merge with or exercise control over
CRC, and such order becomes final after judicial review or failure to
appeal. NS agrees to promptly notify NS-Supported Director upon the
issuance of such an STB order.
NORFOLK SOUTHERN CORPORATION
ATTEST: By:______________________________
______________________________ Title:___________________________
NS-SUPPORTED DIRECTOR
ATTEST: By:______________________________
______________________________ Name: ___________________________
NOMINEE CONSENT
February 5, 1997
Conrail Inc.
2001 Market Street
Two Commerce Square
Philadelphia, Pennsylvania 19101
Attention: Corporate Secretary
Gentlemen:
You are hereby notified that the undersigned consents to (i)
being named as a nominee in the notice provided by Atlantic Investment
Company to Conrail Inc. of its intention to nominate the undersigned and
certain other persons as directors of Conrail Inc. and to conduct certain
other matters at the Conrail Inc. 1997 Annual Meeting of Shareholders
(the "Annual Meeting"), (ii) being named as a nominee in a proxy
statement soliciting proxies for the undersigned's election as a director
of Conrail Inc. at the Annual Meeting, and (iii) serving as a director of
Conrail Inc. if elected at the Annual Meeting. The undersigned also
confirms that the undersigned is committed to seek the most advantageous
transaction for holders of shares of Common Stock and ESOP Preferred
Convertible Junior Preferred Stock of Conrail Inc., and will evaluate
fairly and impartially all acquisition or other proposals received by
Conrail Inc., whether made by Norfolk Southern Corporation, by CSX
Corporation or by any other potential acquiror and whether now pending or
subsequently made.
Very truly yours,
/s/ George A. Butler
NOMINEE CONSENT
February 5, 1997
Conrail Inc.
2001 Market Street
Two Commerce Square
Philadelphia, Pennsylvania 19101
Attention: Corporate Secretary
Gentlemen:
You are hereby notified that the undersigned consents to (i)
being named as a nominee in the notice provided by Atlantic Investment
Company to Conrail Inc. of its intention to nominate the undersigned and
certain other persons as directors of Conrail Inc. and to conduct certain
other matters at the Conrail Inc. 1997 Annual Meeting of Shareholders
(the "Annual Meeting"), (ii) being named as a nominee in a proxy
statement soliciting proxies for the undersigned's election as a director
of Conrail Inc. at the Annual Meeting, and (iii) serving as a director of
Conrail Inc. if elected at the Annual Meeting. The undersigned also
confirms that the undersigned is committed to seek the most advantageous
transaction for holders of shares of Common Stock and ESOP Preferred
Convertible Junior Preferred Stock of Conrail Inc., and will evaluate
fairly and impartially all acquisition or other proposals received by
Conrail Inc., whether made by Norfolk Southern Corporation, by CSX
Corporation or by any other potential acquiror and whether now pending or
subsequently made.
Very truly yours,
/s/ Stephen P. Lamb
NOMINEE CONSENT
February 5, 1997
Conrail Inc.
2001 Market Street
Two Commerce Square
Philadelphia, Pennsylvania 19101
Attention: Corporate Secretary
Gentlemen:
You are hereby notified that the undersigned consents to (i)
being named as a nominee in the notice provided by Atlantic Investment
Company to Conrail Inc. of its intention to nominate the undersigned and
certain other persons as directors of Conrail Inc. and to conduct certain
other matters at the Conrail Inc. 1997 Annual Meeting of Shareholders
(the "Annual Meeting"), (ii) being named as a nominee in a proxy
statement soliciting proxies for the undersigned's election as a director
of Conrail Inc. at the Annual Meeting, and (iii) serving as a director of
Conrail Inc. if elected at the Annual Meeting. The undersigned also
confirms that the undersigned is committed to seek the most advantageous
transaction for holders of shares of Common Stock and ESOP Preferred
Convertible Junior Preferred Stock of Conrail Inc., and will evaluate
fairly and impartially all acquisition or other proposals received by
Conrail Inc., whether made by Norfolk Southern Corporation, by CSX
Corporation or by any other potential acquiror and whether now pending or
subsequently made.
Very truly yours,
/s/ Mary Patterson McPherson
NOMINEE CONSENT
February 5, 1997
Conrail Inc.
2001 Market Street
Two Commerce Square
Philadelphia, Pennsylvania 19101
Attention: Corporate Secretary
Gentlemen:
You are hereby notified that the undersigned consents to (i)
being named as a nominee in the notice provided by Atlantic Investment
Company to Conrail Inc. of its intention to nominate the undersigned and
certain other persons as directors of Conrail Inc. and to conduct certain
other matters at the Conrail Inc. 1997 Annual Meeting of Shareholders
(the "Annual Meeting"), (ii) being named as a nominee in a proxy
statement soliciting proxies for the undersigned's election as a director
of Conrail Inc. at the Annual Meeting, and (iii) serving as a director of
Conrail Inc. if elected at the Annual Meeting. The undersigned also
confirms that the undersigned is committed to seek the most advantageous
transaction for holders of shares of Common Stock and ESOP Preferred
Convertible Junior Preferred Stock of Conrail Inc., and will evaluate
fairly and impartially all acquisition or other proposals received by
Conrail Inc., whether made by Norfolk Southern Corporation, by CSX
Corporation or by any other potential acquiror and whether now pending or
subsequently made.
Very truly yours,
/s/ Bernard C. Watson
NOMINEE CONSENT
February 5, 1997
Conrail Inc.
2001 Market Street
Two Commerce Square
Philadelphia, Pennsylvania 19101
Attention: Corporate Secretary
Gentlemen:
You are hereby notified that the undersigned consents to (i)
being named as a nominee in the notice provided by Atlantic Investment
Company to Conrail Inc. of its intention to nominate the undersigned and
certain other persons as directors of Conrail Inc. and to conduct certain
other matters at the Conrail Inc. 1997 Annual Meeting of Shareholders
(the "Annual Meeting"), (ii) being named as a nominee in a proxy
statement soliciting proxies for the undersigned's election as a director
of Conrail Inc. at the Annual Meeting, and (iii) serving as a director of
Conrail Inc. if elected at the Annual Meeting. The undersigned also
confirms that the undersigned is committed to seek the most advantageous
transaction for holders of shares of Common Stock and ESOP Preferred
Convertible Junior Preferred Stock of Conrail Inc., and will evaluate
fairly and impartially all acquisition or other proposals received by
Conrail Inc., whether made by Norfolk Southern Corporation, by CSX
Corporation or by any other potential acquiror and whether now pending or
subsequently made.
Very truly yours,
/s/ J. Roger Williams, Jr.
