As filed with the Securities and Exchange Commission on March 19, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BURLINGTON NORTHERN SANTA FE CORPORATION
-----------------------------
(Exact name of registrant as specified in its charter)
Delaware 41-1804964
(State of incorporation) (I.R.S. Employer Identification Number)
2650 Lou Menk Drive
Fort Worth, Texas 76131-2830
(817) 333-2000
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Jeffrey R. Moreland
2650 Lou Menk Drive
Fort Worth, Texas 76131-2830
(817) 352-1350
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
-----------------------------
Copies to:
James J. Junewicz Robert M. Thomas, Jr.
Mayer, Brown & Platt Sullivan & Cromwell
190 South LaSalle Street 125 Broad Street
Chicago, Illinois 60603 New York, New York 10004
(312) 782-0600 (212) 558-4000
-----------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. [ ]_____
________________________________________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]____________________________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.[ ]
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
||
===================================================================================================================
Proposed maximum Proposed maximum Amount of
Title of each class of Amount offering price aggregate registration
securities to be registered to be registered per unit (1) offering price (1) fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $500,000,000 100% $500,000,000 (2) $147,500
===================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457 under the Securities Act of 1933
solely for purposes of determining the registration fee.
(2) Or, if any Debt Securities are issued (i) with a principal amount
denominated in a foreign currency (including composite currency),
such principal amount as shall result in an aggregate initial
offering price the equivalent of $500,000,000 or (ii) at an
original issue discount, such greater principal amount as shall
result in an aggregate initial offering price of $500,000,000.
||
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
==============================================================================
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MARCH 19, 1998
PROSPECTUS
Burlington Northern Santa Fe Corporation
Debt Securities
----------------------
Burlington Northern Santa Fe Corporation ("BNSF" or the "Company")
may from time to time offer debt securities consisting of bonds,
debentures, notes (including notes commonly known as medium-term notes), or
other evidences of indebtedness in one or more series at an aggregate
initial offering price not to exceed $500,000,000 or its equivalent in any
other currency or composite currency ("Debt Securities"). The Debt
Securities may be offered as separate series in amounts, at prices, and on
terms to be determined at the time of sale. The accompanying Prospectus
Supplement sets forth with regard to the series of Debt Securities in
respect of which this Prospectus is being delivered the title, aggregate
principal amount, denominations (which may be in United States dollars, in
any other currency or in a composite currency), maturity, rate, if any
(which may be fixed or variable), and time of payment of any interest, any
terms for redemption at the option of the Company or the holder, any terms
for sinking fund payments, any listing on a securities exchange, and the
initial public offering price and any other terms in connection with the
offering and sale of such Debt Securities.
The Company may sell Debt Securities to or through one or more
underwriters or dealers, and also may sell Debt Securities directly to
other purchasers or through agents. The accompanying Prospectus Supplement
sets forth the names of any underwriters or agents involved in the sale of
the Debt Securities in respect of which this Prospectus is being delivered,
the principal amounts, if any, to be purchased by underwriters and the
compensation, if any, of such underwriters or agents. See "Plan of
Distribution" for possible indemnification arrangements for underwriters,
agents, and their controlling persons.
This Prospectus may not be used to consummate sales of securities
unless accompanied by a Prospectus Supplement.
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
----------------------
The date of this Prospectus is March __, 1998
<PAGE>
No person is authorized in connection with any offering made
hereby to give any information or to make any representations not contained
in or incorporated by reference in this Prospectus, and, if given or made,
such information or representation must not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any security other than the Debt
Securities offered hereby, nor does it constitute an offer to sell or a
solicitation of an offer to buy any of the securities offered hereby to any
person in any jurisdiction in which it is unlawful to make such an offer or
solicitation to such person. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made hereunder shall under any
circumstance create any implication that the information contained herein
is correct as of any date subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
material and other information filed with the Commission can be inspected
and copied at the offices of the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549 and should be available at its regional
offices, 500 West Madison Street, Chicago, Illinois 60661 and Seven World
Trade Center, Thirteenth Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates and from the Commission's worldwide web site at http://www.sec.gov.
Such reports, proxy material and other information concerning the Company
also may be inspected at the offices of the New York Stock Exchange, Inc.
(the "NYSE"), 20 Broad Street, New York, New York 10005, the Chicago Stock
Exchange Incorporated, One Financial Place, 440 South LaSalle Street,
Chicago, Illinois 60605, and the Pacific Exchange, 301 Pine Street, San
Francisco, California 94104.
The Company has filed with the Commission a registration statement
on Form S-3 (together with all amendments and exhibits, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"). This prospectus ("Prospectus"), which constitutes a part of the
Registration Statement, does not contain all the information set forth in
the Registration Statement, certain items of which are contained in
exhibits to the Registration Statement as permitted by the rules and
regulations of the Commission. Statements made in this Prospectus as to the
content of any contract, agreement or other document referred to are not
necessarily complete. With respect to each such contract, agreement or
other document filed as an exhibit to the Registration Statement, reference
is made to the exhibit for a more complete description of the matter
involved, and each such statement shall be deemed qualified in its entirety
by such reference.
2
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed by the Company under the
Exchange Act with the Commission are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1997;
(c) Quarterly Report on Form 10-Q for the quarter ended June 30,
1997;
(d) Quarterly Report on Form 10-Q for the quarter ended September
30, 1997;
(e) Current Report on Form 8-K (Date of earliest event reported:
January 21, 1997);
(f) Current Report on Form 8-K (Date of earliest event reported:
July 22, 1997); and
(g) Current Report on Form 8-K (Date of earliest event reported:
February 6, 1998).
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering shall be deemed to be incorporated herein by
reference and shall be deemed a part hereof from the date of filing of such
documents. All documents filed by the Company after the date of the initial
Registration Statement but prior to the effectiveness of the Registration
Statement shall be deemed to be incorporated herein by reference and shall
be deemed a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated
by reference herein will be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is, or is deemed to
be, incorporated by reference herein modifies or supersedes any such
statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, on the request
of such person, a copy of any of the foregoing documents incorporated
herein by reference (other than the exhibits to such documents unless such
exhibits are specifically incorporated by reference into such documents).
Written or telephone requests should be directed to Burlington Northern
Santa Fe Corporation, 2650 Lou Menk Drive, Fort Worth, Texas 76131-2830,
Attention: Corporate Secretary (telephone (817) 352-6454).
Unless otherwise indicated, currency amounts in the Prospectus and
any Prospectus Supplement are stated in United States dollars ("$" or
"dollars").
3
<PAGE>
THE COMPANY
On September 22, 1995, Burlington Northern Inc. ("BNI") and Santa
Fe Pacific Corporation ("SFP") effected a business combination (the
"Merger") pursuant to which each became a direct or indirect wholly owned
subsidiary of the Company. As a result of the Merger, Burlington Northern
Railroad Company ("BN") and The Atchison, Topeka and Santa Fe Railway
Company ("ATSF") also became indirect wholly owned subsidiaries of the
Company.
On December 30, 1996, BNI merged with and into SFP. On December
31, 1996, ATSF merged with and into BN and BN changed its name to The
Burlington Northern and Santa Fe Railway Company ("BNSF Railway").
On January 2, 1998, SFP merged with and into BNSF Railway.
Through its principal operating subsidiary, BNSF Railway, the
Company is engaged primarily in railroad transportation. BNSF Railway
operates one of the largest railroad networks in the United States, with
approximately 34,000 route miles as of December 31, 1997. Approximately
7,800 route miles of BNSF Railway's system consist of trackage rights which
permit BNSF Railway to operate its trains with its crews over another
railroad's tracks. BNSF Railway's system reaches 28 states and two Canadian
provinces.
BNSF Railway serves all major ports in the western United States,
certain Mexican and Canadian gateways and Gulf ports, important gateways to
the eastern United States and most major cities in the Pacific Northwest
and West and in the midwestern and southwestern United States. The
principal cities served by BNSF Railway include Albuquerque, Amarillo,
Billings, Birmingham, Cheyenne, Chicago, Corpus Christi, Dallas, Denver,
Des Moines, Duluth/Superior, Fargo/Moorhead, Fort Worth, Galveston,
Houston, Kansas City, Little Rock, Lincoln, Los Angeles, Memphis, Mobile,
New Orleans, Oklahoma City, Omaha, Phoenix, Portland, Reno, Salt Lake City,
San Antonio, St. Louis, St. Paul/Minneapolis, the San Francisco Bay area,
Seattle, Spokane, Springfield (Missouri), Tacoma, Tulsa, Wichita, Vancouver
(British Columbia), Winnipeg (Manitoba) and the United States/Mexico
crossings of Brownsville, El Paso and Eagle Pass, Texas and San Diego.
BNSF Railway derives a substantial portion of its revenues from
intermodal transportation and the transportation of coal and agricultural
commodities. Other significant aspects of BNSF Railway's business include
the transportation of commodities in the following areas: chemicals, forest
products, consumer goods, automotive, metals, and minerals.
The Company's principal executive offices are located at 2650 Lou
Menk Drive, Fort Worth, Texas 76131- 2830, telephone number (817) 352-6454.
4
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges of the Company for each of the five years ended December 31, 1997.
The ratios reflect the historical results for BNI only in all periods
reported prior to 1996, except for the year ended December 31, 1995, which
period also includes SFP results from September 22, 1995 through December 31,
1995.
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------------------
1997(2) 1996 1995(2) 1994 1993
------ ---- ------- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings to Fixed Charges(1) 3.52x 3.89x 1.85x 3.70x 3.19x
</TABLE>
(1) For purposes of this ratio, earnings are calculated by adding
fixed charges (excluding capitalized interest) to income (loss)
from continuing operations. Fixed charges consist of interest on
indebtedness (including amortization of debt discount and premium)
and the portion of rental expense under long term operating leases
representative of an interest factor.
(2) Earnings for the years ended December 31, 1997 and 1995 include
special charges of $90 million and $735 million (before tax),
respectively. Excluding these charges, the ratios for 1997 and
1995 would have been 3.68x and 3.91x, respectively.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus
Supplement, net proceeds from the sale of the Debt Securities will be used
for general corporate purposes, including working capital, capital
expenditures, and debt repayment, and for the repurchase of the Company's
common stock from time to time.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the
"Indenture"), between the Company and The First National Bank of Chicago,
as Trustee (the "Trustee"), a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The Debt
Securities may be issued from time to time in one or more series. The
particular terms of each series, or of Debt Securities forming a part of a
series which are offered by a Prospectus Supplement, will be described in
such Prospectus Supplement.
The following summaries of certain provisions of the Indenture do
not purport to be complete and are subject, and are qualified in their
entirety by reference, to all the provisions of the Indenture, including
the definitions therein of certain terms, and, with respect to any
particular Debt Securities, to the description of the terms thereof
included in the Prospectus Supplement relating thereto. Wherever particular
Sections or defined terms of the Indenture are referred to herein or in a
Prospectus Supplement, such Sections or defined terms are incorporated by
reference herein or therein, as the case may be.
The Company is a holding company, conducting its operations
through its operating subsidiaries. Accordingly, the Company's ability to
service the Debt Securities is dependent, in part, on its ability to obtain
dividends or loans from such operating subsidiaries which may be subject to
contractual restrictions. In addition, the rights of the Company and the
rights of its creditors, including holders of the Debt Securities, to
participate in any distribution of the assets of a subsidiary upon the
liquidation or recapitalization of such subsidiary will be subject to the
prior claims of the subsidiary's creditors, except to the extent the
Company itself may be a creditor with recognized claims against the
subsidiary.
The covenants in the Indenture would not necessarily afford the
holders of the Debt Securities protection in the event of a decline in the
Company's credit quality resulting from highly leveraged or other
transactions involving the Company.
5
<PAGE>
General
The Indenture provides that separate series of Debt Securities may
be issued under the Indenture from time to time without limitation as to
aggregate principal amount. The Company may specify a maximum aggregate
principal amount for the Debt Securities of any series. (Section 301) The
Debt Securities are to have such terms and provisions which are not
inconsistent with the Indenture, including as to maturity, principal and
interest, as the Company may determine. Except as provided in Section 1008,
the Debt Securities will be unsecured obligations of the Company and will
rank on a parity with all other unsecured and unsubordinated indebtedness
of the Company.
The applicable Prospectus Supplement will set forth the price or
prices at which the Debt Securities to be offered will be issued and will
describe the following terms of such Debt Securities: (1) the title of such
Debt Securities; (2) any limit on the aggregate principal amount of the
particular series of Debt Securities; (3) the date or dates on which the
principal of any of such Debt Securities will be payable or the method by
which such date or dates will be determined or extended; (4) the rate or
rates at which any of such Debt Securities will bear interest, if any, or
the method by which such rate or rates shall be determined, the date or
dates from which any such interest will accrue, the Interest Payment Dates
on which any such interest will be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date, or the method by
which such date or dates shall be determined, and the basis upon which
interest shall be calculated if other than that of a 360-day year of twelve
30- day months; (5) the place or places where the principal of and any
premium and interest on any of such Debt Securities will be payable; (6)
the period or periods within which, the price or prices at which and the
terms and conditions upon which any of such Debt Securities may be
redeemed, in whole or in part, at the option of the Company and the manner
in which any election by the Company to redeem such Debt Securities shall
be evidenced (if other than by a Board Resolution); (7) the obligation, if
any, of the Company to redeem or purchase any of such Debt Securities
pursuant to any sinking fund or analogous provision or at the option of the
Holder thereof, and the period or periods within which, the price or prices
at which and the terms and conditions on which any of such Debt Securities
will be redeemed or purchased, in whole or in part, pursuant to any such
obligation; (8) the denominations in which any of such Debt Securities will
be issuable, if other than denominations of $1,000 and any integral
multiple thereof; (9) if the amount of principal of or any premium or
interest on any of such Debt Securities may be determined with reference to
an index or pursuant to a formula, the manner in which such amounts will be
determined; (10) if other than the currency of the United States of
America, the currency, currencies or currency units in which the principal
of or any premium or interest on any of such Debt Securities will be
payable (and the manner in which the equivalent of the principal amount
thereof in the currency of the United States of America is to be determined
for any purpose, including for the purpose of determining the principal
amount deemed to be Outstanding at any time); (11) if the principal of or
any premium or interest on any of such Debt Securities is to be payable, at
the election of the Company or the Holder thereof, in one or more
currencies or currency units other than those in which such Debt Securities
are stated to be payable, the currency, currencies or currency units in
which payment of any such amount as to which such election is made will be
payable, the periods within which and the terms and conditions upon which
such election is to made and the amount so payable (or the manner in which
such amount is to be determined); (12) the percentage of the principal
amount at which such Debt Securities will be issued and, if other than the
entire principal amount thereof, the portion of the principal amount of any
of such Debt Securities which will be payable upon declaration of
acceleration of the Maturity thereof or the method by which such portion
shall be determined; (13) if the principal amount payable at the Stated
Maturity of any of such Debt Securities will not be determinable as of any
one or more dates prior to the Stated Maturity, the amount which will be
deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof which will be due and payable upon
any Maturity other than the Stated Maturity or which will be deemed to be
Outstanding as of any such date (or, in any such case, the manner in which
such deemed principal amount is to be determined); (14) any variation from
the application of the provisions of the Indenture described under
"Defeasance and Covenant Defeasance--Defeasance and Discharge" or
"Defeasance and Covenant Defeasance--Defeasance of Certain Covenants" or
under both such captions and the manner in which any election of the
Company to defease such Debt Securities shall be evidenced (if other than
6
<PAGE>
by a Board Resolution); (15) whether any of such Debt Securities will be
issuable in whole or in part in the form of one or more Global Securities
and, if so, the respective Depositaries for such Global Securities, the
form of any legend or legends to be borne by any such Global Securities in
addition to or in lieu of the legend referred to under "Form, Exchange and
Transfer--Global Securities" and, if different from those described under
such caption, any circumstances under which any such Global Securities may
be exchanged in whole or in part for Debt Securities registered, and any
transfer of such Global Securities in whole or in part may be registered,
in the names of Persons other than the Depositary for such Global
Securities or its nominee; (16) whether any of such Debt Securities will be
subject to certain optional interest rate reset provisions; (17) whether
any of such Debt Securities will be subject to certain optional extensions
of maturity provisions; (18) any addition to or change in the Events of
Default applicable to any of such Debt Securities and any change in the
right of the Trustee or the Holders of any of such Debt Securities to
declare the principal amount of any of such Debt Securities and any change
in the right of the Trustee or the Holders of any of such Debt Securities
to declare the principal amount thereof, due and payable; (19) any addition
to or change in the covenants in the Indenture applicable to any of such
Debt Securities; and (20) any other terms of such Debt Securities not
inconsistent with the provisions of the Indenture. (Section 301)
Debt Securities, including Original Issue Discount Securities, may
be sold at a substantial discount below their principal amount. Certain
special United States income tax considerations (if any) applicable to Debt
Securities sold at an original issue discount may be described in the
applicable Prospectus Supplement. In addition, certain special United
States federal income tax or other considerations (if any) applicable to
any Debt Securities which are denominated in a currency or currency unit
other than United States dollars may be described in the applicable
Prospectus Supplement.
Form, Exchange and Transfer
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable Prospectus Supplement, only in denominations of $1,000 and
integral multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indenture
and the limitations applicable to Global Securities, Debt Securities of
each series will be exchangeable for other Debt Securities of the same
series of any authorized denomination and of a like tenor and aggregate
principal amount. (Section 305)
Subject to the terms of the Indenture and the limitations
applicable to Global Securities, Debt Securities may be presented for
exchange as provided above or for registration of transfer (duly endorsed
or with the form of transfer endorsed thereon duly executed) at the office
of the Security Registrar or at the office of any transfer agent designated
by the Company for such purpose. No service charge will be made for any
registration of transfer or exchange of Debt Securities, but the Company
may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Such transfer or
exchange will be effected upon the Security Registrar or such transfer
agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request. The Company has appointed the
Trustee as Security Registrar. Any transfer agent (in addition to the
Security Registrar) initially designated by the Company for any Debt
Securities will be named in the applicable Prospectus Supplement. (Section
305) The Company may at any time designate additional transfer agents or
rescind the designation of any transfer agent or approve a change in the
office through which any transfer agent acts, except that the Company will
be required to maintain a transfer agent in each Place of Payment for the
Debt Securities of each series. (Section 1002)
If the Debt Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company will not be
required to (i) issue, register the transfer of or exchange any Debt
Security of that series (or of that series and specified tenor, as the case
may be) during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of any such Debt Security that
may be selected for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange any Debt
Security so selected for redemption, in whole or in part, except the
7
<PAGE>
unredeemed portion of any such Debt Security being redeemed in part.
(Section 305)
Global Securities
Unless otherwise provided in the Prospectus Supplement, some or
all of the Debt Securities of any series may be represented, in whole or in
part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby.
Unless otherwise provided in the Prospectus Supplement, the Global Security
representing Debt Securities will be deposited with, or on behalf of, The
Depository Trust Company ("DTC"), or other successor depository appointed
by the Company (DTC or such other depository is herein referred to as the
"Depositary") and registered in the name of the Depositary or its nominee
and such Global Security will bear a legend regarding the restrictions on
exchange and registration of transfer thereof referred to below and any
such other matters as may be provided for pursuant to the Indenture. Unless
otherwise provided in the Prospectus Supplement, Debt Securities will not
be issued in definitive form.
Notwithstanding any provision of the Indenture or any Debt
Security described herein, no Global Security may be exchanged in whole or
in part for Debt Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or any nominee of such
Depositary unless (i) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or
has ceased to be qualified to act as such as required by the Indenture,
(ii) there shall have occurred and be continuing an Event of Default with
respect to the Debt Securities represented by such Global Security or (iii)
there shall exist such circumstances, if any, in addition to or in lieu of
those described above as may be described in the applicable Prospectus
Supplement. All Debt Securities issued in exchange for a Global Security or
any portion thereof will be registered in such names as the Depositary may
direct. (Sections 204 and 305)
DTC is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and
a "clearing agency" registered pursuant to the provisions of Section 17A of
the Exchange Act. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement
among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct Participants include
securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. DTC is owned by a number of
Direct Participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc., and the National Association of Securities Dealers,
Inc. Access to DTC's book-entry system is also available to others, such as
securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Direct Participant,
either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
Upon the issuance by the Company of Debt Securities represented by
a Global Security, purchases of Debt Securities under the DTC System must
be made by or through Direct Participants, which will receive a credit for
the Debt Securities on DTC's records. The ownership interest of each actual
purchaser of each Debt Security ("Beneficial Owner") is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchase,
but Beneficial Owners are expected to receive written confirmations
providing details of the transaction, as well as periodic statements of
their holdings, from the Direct or Indirect Participant through which the
Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Debt Securities are to be accomplished by entries made on
the books of Participants acting on behalf of Beneficial Owners. Beneficial
Owners will not receive certificates representing their ownership interests
in Debt Securities, except in the event that use of the book-entry system
for the Debt Securities is discontinued. The laws of some states require
that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to transfer
beneficial interests in a Global Security.
8
<PAGE>
So long as the Depositary for the Global Security, or its nominee,
is the registered owner of the Global Security, the Depositary or its
nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Global Security for all purposes
under the Indenture. Except as described above, Beneficial Owners will not
be entitled to have Debt Securities represented by such Global Security
registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture.
To facilitate subsequent transfers, all Debt Securities deposited
by Participants with DTC are registered in the name of DTC's partnership
nominee, Cede & Co. The deposit of Debt Securities with DTC and their
registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the Debt
Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Debt Securities are credited, which may
or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their
customers. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to
Debt Securities. Under its usual procedures, DTC mails an Omnibus Proxy to
the Issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Debt Securities are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Payments of principal of and interest, if any, on the Debt
Securities represented by the Global Security registered in the name of the
Depositary or its nominee will be made by the Company through the Trustee
under the Indenture or a paying agent (the "Paying Agent"), which may also
be the Trustee under the Indenture, to the Depositary or its nominee, as
the case may be, as the registered owner of the Global Security. Neither
the Company, the Trustee, nor the Paying Agent will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Global Security or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company has been advised that DTC will credit Direct
Participants' accounts on the payable date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payment on the payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as in the case with securities held for the
accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such Participant and not of DTC, the Paying
Agent, or the Company, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of principal and interest to
DTC is the responsibility of the Company or the Paying Agent, disbursement
of such payments to Direct Participants shall be the responsibility of DTC,
and disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the
Company believes to be reliable, but the Company takes no responsibility
for the accuracy thereof.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of interest on a Debt Security on any Interest Payment
Date will be made to the Person in whose name such Debt Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus
Supplement, principal of and any premium and interest on the Debt
Securities of a particular series will be payable at the office of such
9
<PAGE>
Paying Agent or Paying Agents as the Company may designate for such purpose
from time to time, except that at the option of the Company payment of any
interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the Security Register. Unless otherwise
indicated in the applicable Prospectus Supplement, the corporate trust
office of the Trustee in Chicago, Illinois will be designated as the
Company's sole Paying Agent for payments with respect to Debt Securities of
each series. Any other Paying Agents initially designated by the Company
for the Debt Securities of a particular series will be named in the
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except
that the Company will be required to maintain a Paying Agent in each Place
of Payment for the Debt Securities of a particular series. (Section 1002)
Any money paid by the Company to a Paying Agent for the payment of
the principal of or any premium or interest on any Debt Security which
remains unclaimed at the end of two years after such principal, premium or
interest has become due and payable may be repaid to the Company at the
Company's request. (Section 1003)
Negative Pledge
In the Indenture, the Company covenants that it will not, and it
will not permit any subsidiary to, create, assume, incur or suffer to exist
any Lien upon the stock of BNSF Railway (or any successor or assign
thereof, whether by merger or otherwise) to secure any obligation (other
than the Debt Securities) of the Company, any Subsidiary or other Person,
unless all of the Outstanding Debt Securities are directly secured equally
and ratably with such obligation. (Section 1008)
Consolidation, Merger and Sale of Assets
The Company may not consolidate with or merge into, or convey,
transfer or lease its properties and assets substantially as an entirety
to, any Person (a "successor Person"), and may not permit any Person to
merge into, or convey, transfer or lease its properties and assets
substantially as an entirety to, the Company, unless (i) the successor
Person (if any) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any domestic jurisdiction
and assumes the Company's obligations on the Debt Securities and under the
Indenture and (ii) immediately after giving effect to the transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing. (Section 801)
Events of Default
Each of the following will constitute an Event of Default under
the Indenture with respect to Debt Securities of any series: (a) failure to
pay principal of or any premium on any Debt Security of that series when
due; (b) failure to pay any interest on any Debt Securities of that series
when due, continued for 30 days; (c) failure to deposit any sinking fund
payment, when due, in respect of any Debt Security of that series; (d)
failure to perform, or breach of, any other covenant or warranty of the
Company in the Indenture with respect to Debt Securities of that series
(other than a covenant included in the Indenture solely for the benefit of
a series other than that series), continued for 90 days after written
notice has been given to the Company by the Trustee or the Holders of at
least 25% in principal amount of the Outstanding Debt Securities of that
series, as provided in the Indenture; and (e) certain events involving
bankruptcy, insolvency or reorganization. (Section 501)
If an Event of Default (other than an Event of Default described
in clause (d) above that is applicable to all Outstanding Debt Securities)
with respect to the Debt Securities of any series at the time Outstanding
Debt shall occur and be continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series by notice as provided in the Indenture may declare the
principal amount of the Debt Securities of that series (or, in the case of
any Debt Security that is an Original Issue Discount Security or the
principal amount of which is not then determinable, such portion of the
10
<PAGE>
principal amount of such Debt Security, or such other amount in lieu of
such principal amount, as may be specified in the terms of such Debt
Security) to be due and payable immediately. If an Event of Default
described in clause (d) above that is applicable to all Outstanding Debt
Securities shall occur and be continuing, either the Trustee or the Holders
of at least 25% in aggregate principal amount of all the Debt Securities
then Outstanding (treated as one class) by notice as provided in the
Indenture may declare the principal amount (or, if any Debt Securities are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms thereof) of all the Debt Securities then
Outstanding to be due and payable immediately. After any such acceleration
of a series, but before a judgment or decree based on acceleration, the
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of that series may, under certain circumstances, rescind and
annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal (or other specified amount), have been
cured or waived as provided in the Indenture. (Section 502) For information
as to waiver of defaults, see "Modification and Waiver".
Subject to the provisions of the Indenture relating to the duties
of the Trustee, in case an Event of Default shall occur and be continuing,
the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the
Holders, unless such Holders shall have offered to the Trustee reasonable
indemnity. (Section 603) Subject to such provisions for the indemnification
of the Trustee, the Holders of a majority in aggregate principal amount of
the Outstanding Debt Securities of any series will have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of that series. (Section 512)
No Holder of a Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture, or for the
appointment of a receiver or a trustee, or for any other remedy thereunder,
unless (i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Debt Securities of
that series, (ii) the Holders of at least 25% in aggregate principal amount
of the Outstanding Debt Securities of that series have made written
request, and such Holder or Holders have offered reasonable indemnity, to
the Trustee to institute such proceeding and (iii) the Trustee has failed
to institute such proceeding, and has not received from the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities
of that series a direction inconsistent with such request, within 60 days
after such notice, request and offer. (Section 507) However, such
limitations do not apply to a suit instituted by a Holder of a Debt
Security for the enforcement of payment of the principal of or any premium
or interest on such Debt Security on or after the applicable due date
specified in such Debt Security. (Section 508)
The Company will be required to furnish to the Trustee annually a
statement by certain of its officers as to whether or not the Company, to
their knowledge, is in default in the performance or observance of any of
the terms, provisions and conditions of the Indenture and, if so,
specifying all such known defaults. (Section 1004)
Modification and Waiver
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of each
series affected by such modification or amendment; provided, however, that
no such modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of principal of or
interest on, any Debt Security, (b) reduce the principal amount of, or any
premium or interest on, any Debt Security, (c) reduce the amount of
principal of an Original Issue Discount Security or any other Debt Security
payable upon acceleration of the Maturity thereof, (d) change the place or
currency of payment of principal of, or any premium or interest on, any
Debt Security, (e) impair the right to institute suit for the enforcement
of any payment on or with respect to any Debt Security, (f) reduce the
percentage in principal amount of Outstanding Debt Securities of any
series, the consent of whose Holders is required for modification or
amendment of the Indenture, (g) reduce the percentage in principal amount
of Outstanding Debt Securities of any series necessary for waiver of
11
<PAGE>
compliance with certain provisions of the Indenture or for waiver of
certain defaults, or (h) make certain modifications to such provisions with
respect to modification and waiver. (Section 902)
The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may waive any past default or
compliance with certain restrictive provisions under the Indenture, except
a default in the payment of principal, premium or interest and certain
covenants and provisions of the Indenture which cannot be amended without
the consent of the Holder of each Outstanding Debt Security of such series
affected. (Sections 513 and 1009)
The Indenture provides that in determining whether the Holders of
the requisite principal amount of the Outstanding Debt Securities have
given or taken any direction, notice, consent, waiver or other action under
the Indenture as of any date, (i) the principal amount of an Original Issue
Discount Security that will be deemed to be Outstanding will be the amount
of the principal thereof that would be due and payable as of such date upon
acceleration of the Maturity thereof to such date, (ii) if, as of such
date, the principal amount payable at the Stated Maturity of a Debt
Security is not determinable (for example, because it is based on an
index), the principal amount of such Debt Security deemed to be Outstanding
as of such date will be an amount determined in the manner prescribed for
such Debt Security and (iii) the principal amount of a Debt Security
denominated in one or more foreign currencies or currency units that will
be deemed to be Outstanding will be the U.S. dollar equivalent, determined
as of such date in the manner prescribed for such Debt Security, of the
principal amount of such Debt Security (or, in the case of a Debt Security
described in clause (i) or (ii) above, of the amount described in such
clause). Certain Debt Securities, including those for whose payment or
redemption money has been deposited or set aside in trust for the Holders
and those that have been fully defeased pursuant to Section 1402, will not
be deemed to be Outstanding. (Section 101)
Except in certain limited circumstances, the Company will be
entitled to set any day as a record date for the purpose of determining the
Holders of Outstanding Debt Securities of any series entitled to give or
take any direction, notice, consent, waiver or other action under the
Indenture, in the manner and subject to the limitations provided in the
Indenture. In certain limited circumstances, the Trustee will be entitled
to set a record date for action by Holders. If a record date is set for any
action to be taken by Holders of a particular series, such action may be
taken only by persons who are Holders of Outstanding Debt Securities of
that series on the record date. To be effective, such action must be taken
by Holders of the requisite principal amount of such Debt Securities within
a specified period following the record date. For any particular record
date, this period will be 180 days or such shorter period as may be
specified by the Company (or the Trustee, if it set the record date) and
may be shortened or lengthened (but not beyond 180 days) from time to time.
(Section 104)
Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable Prospectus Supplement,
the provisions of Section 1402, relating to defeasance and discharge of
indebtedness, or Section 1403, relating to defeasance of certain
restrictive covenants in the Indenture, shall apply to the Debt Securities
of any series or to any specified part of a series. (Section 1401)
Defeasance and Discharge. Section 1402 of the Indenture provides
that the Company will be discharged from all its obligations with respect
to such Debt Securities (except for certain obligations to exchange or
register the transfer of Debt Securities, to replace stolen, lost or
mutilated Debt Securities, to maintain paying agencies and to hold moneys
for payment in trust) upon the deposit in trust for the benefit of the
Holders of such Debt Securities of money or U.S. Government Obligations, or
both, which, through the payment of principal and interest in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such
Debt Securities on the respective Stated Maturities in accordance with the
terms of the Indenture and such Debt Securities. Such defeasance or
discharge may occur only if, among other things, the Company has delivered
to the Trustee an Opinion of Counsel to the effect that the Company has
received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either
case to the effect that Holders of such Debt Securities will not recognize
12
<PAGE>
gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge were not to occur.
(Sections 1402 and 1404)
Defeasance of Certain Covenants. Section 1403 of the Indenture
provides that, in certain circumstances, the Company may omit to comply
with certain restrictive covenants, including those described under
"Certain Covenants" and any that may be described in the applicable
Prospectus Supplement, and that in those circumstances the occurrence of
certain Events of Default, which are described above in clause (d) (with
respect to such restrictive covenants) under "Events of Default" and any
that may be described in the applicable Prospectus Supplement, will be
deemed not to be or result in an Event of Default, in each case with
respect to such Debt Securities. The Company, in order to exercise such
option, will be required to deposit, in trust for the benefit of the
Holders of such Debt Securities, money or U.S. Government Obligations, or
both, which, through the payment of principal and interest in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such
Debt Securities on the respective Stated Maturities in accordance with the
terms of the Indenture and such Debt Securities. The Company will also be
required, among other things, to deliver to the Trustee an Opinion of
Counsel to the effect that Holders of such Debt Securities will not
recognize gain or loss for federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be subject to
federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit and defeasance were not
to occur. In the event the Company exercised this option with respect to
any Debt Securities and such Debt Securities were declared due and payable
because of the occurrence of any Event of Default, the amount of money and
U.S. Government Obligations so deposited in trust would be sufficient to
pay amounts due on such Debt Securities at the time of their respective
Stated Maturities but might not be sufficient to pay amounts due on such
Debt Securities upon any acceleration resulting from such Event of Default.
In such case, the Company would remain liable for such payments. (Sections
1403 and 1404)
Notices
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register.
(Sections 101 and 106)
Title
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name a Debt Security is registered as
the absolute owner thereof (whether or not such Debt Security may be
overdue) for the purpose of making payment and for all other purposes.
(Section 309)
Governing Law
The Indenture and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York. (Section 112)
Regarding the Trustee
The First National Bank of Chicago has lending and other customary
banking relationships with the Company.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) through an
underwriter or underwriters, (ii) through dealers, (iii) through agents,
(iv) directly to purchasers, including affiliates of the Company, or (v)
through a combination of any such methods of sale. The applicable
Prospectus Supplement will set forth the terms of the offerings of any Debt
Securities, including the method of distribution, the name or names of any
13
<PAGE>
underwriters, dealers or agents, any managing underwriter or underwriters,
the purchase price of the Debt Securities and the proceeds to the Company
from the sale, any underwriting discounts, agency fees and other items
constituting underwriters' compensation and any discounts and concessions
allowed, reallowed or paid to dealers or agents. The initial public
offering price and any discount or concessions allowed or reallowed to
dealers may be changed from time to time. The expected time of delivery of
the Debt Securities in respect of which this Prospectus is delivered will
be set forth in the applicable Prospectus Supplement.
If underwriters are used in the sale of the Debt Securities, the
underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and that the
underwriters with respect to a sale of Debt Securities will be obligated to
purchase all such Debt Securities if any are purchased. In connection with
the sale of Debt Securities, underwriters may receive compensation from the
Company or from purchasers of Debt Securities for whom they may act as
agents in the form of discounts, concessions or commissions. Underwriters
may sell Debt Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they
may act as agent.
Underwriters, agents or dealers participating in the distribution
of Debt Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of
the Debt Securities may be deemed to be underwriting discounts and
commissions under the Securities Act.
The Debt Securities may be sold in one or more transactions either
at a fixed price or prices which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Company may also offer and sell the
Debt Securities in exchange for one or more of its outstanding issues of
debt or convertible debt securities or in the satisfaction of indebtedness.
Underwriters, agents or dealers who participate in the
distribution of Debt Securities may be entitled, under agreements which may
be entered into with the Company, to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, or to
contribution by the Company to payments that such underwriters, dealers or
agents or any of their controlling persons may be required to make in
respect thereof. Underwriters, agents or dealers may be customers of,
engage in transactions with or perform services for the Company or
subsidiaries of the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters, dealers and agents to solicit offers by certain
institutions to purchase Debt Securities from the Company pursuant to
delayed delivery contracts providing for payment and delivery on the date
stated in the Prospectus Supplement. Such contracts will be subject only to
those conditions set forth in the Prospectus Supplement. The Prospectus
Supplement will also set forth the commission payable for solicitation of
such contracts.
Offers to purchase Debt Securities may be solicited directly by
the Company and sales thereof may be made by the Company directly to
institutional investors or others who may be deemed to be underwriters
within the meaning of the Securities Act with respect to any resale
thereof. The terms of any such sales will be described in the Prospectus
Supplement relating thereto. Except as set forth in the applicable
Prospectus Supplement, no director, officer or employee of the Company will
solicit or receive a commission in connection with direct sales by the
Company of the Debt Securities, although such persons may respond to
inquiries by potential purchasers and perform ministerial and clerical work
in connection with any such direct sales.
VALIDITY OF SECURITIES
The validity of the Debt Securities being offered hereby will be
passed upon for the Company by Mayer, Brown & Platt, Chicago, Illinois, and
for the underwriters, dealers, or agents, if any, by Sullivan & Cromwell,
New York, New York.
14
<PAGE>
EXPERTS
The consolidated financial statements and the financial statement
schedule as of December 31, 1996 and for the year ended December 31, 1996
incorporated in this Prospectus by reference to the Company's Annual Report
on Form 10-K for the year ended December 31, 1996 and the consolidated
financial statements as of December 31, 1997 and 1996 and for each of the
two years in the period ended December 31, 1997 incorporated in this
Prospectus by reference to the Company's Current Report on Form 8-K dated
February 6, 1998 have been so incorporated in reliance on the reports of
Price Waterhouse LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The consolidated financial statements for the year ended December
31, 1995 incorporated in this Prospectus by reference to the Company's
Current Report on Form 8-K (date of earliest event reported: February 6,
1998) and the consolidated financial statement schedule as of December 31,
1995 and 1994 incorporated in this Prospectus by reference to the Company's
Annual Report on Form 10-K for the year ended December 31, 1996 have been
so incorporated in reliance on the reports of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The registrant estimates that expenses in connection with the offering
described in this Registration Statement will be as follows:
SEC Registration Fee...........................................$147,500
Legal Fees and Expenses ..................................... 40,000
Accounting Fees and Expenses.....................................50,000
Rating Agency Fees .............................................150,000
Trustee's Fees and Expenses .....................................10,000
Printing and Engraving Expenses .................................15,000
Blue Sky Fees and Expenses ......................................10,000
Miscellaneous.....................................................7,500
Total.................................................$430,000
Item 15. Indemnification of Officers and Directors.
The Company is incorporated under the laws of the State of
Delaware. The General Corporation Law of the State of Delaware (the
"Delaware Statute") provides for indemnification of directors, officers,
and employees in certain situations. The Delaware Statute, by its terms,
expressly permits indemnification where such a person acted in good faith
and in a manner such person reasonably believed to be in, or not opposed
to, the corporation's best interests, and, in a criminal action, if such
person had no reasonable cause to believe that his or her conduct was
unlawful. In the case of a claim by a third party (i.e., a party other than
the corporation), the Delaware Statute expressly permits indemnification
for expenses, judgments, settlement payments, and other costs. In the case
of a claim by or in the right of the corporation (including stockholder
derivative suits), the Delaware Statute expressly provides for
indemnification for expenses only, and not for amounts paid in judgment or
settlement of such actions. Moreover, a corporation cannot, under the
Delaware Statute, provide for indemnification against expenses in the case
of an action by or in the right of the corporation if the person seeking
indemnification is adjudged liable to the corporation, unless the
indemnification is ordered by a court. The Delaware Statute also permits
advancement of expenses to directors and officers upon receipt of an
undertaking by such director or officer to repay all amounts advanced if it
shall ultimately be determined that he or she is not entitled to be
indemnified by the corporation. In addition, the Delaware Statute
specifically provides that its terms shall not be deemed exclusive of any
other right to indemnification to which a director, officer, or employee
may be entitled under any by-law, agreement, or vote of stockholders or
disinterested directors.
The By-Laws of the Company provide that the Company shall
indemnify and hold harmless, to the full extent permitted by law, any
person made, or threatened to be made, a party to an action, suit, or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer of the
Company, or served or serves as a director, officer, employee, or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan, at
the request of the Company.
II-1
<PAGE>
The Company also maintains directors' and officers' liability
insurance which purports to insure the Company against certain costs of
indemnification which may be incurred by the Company pursuant to the
foregoing provisions, and to insure directors and officers of the Company
against certain liabilities incurred by them in the discharge of their
function as such officers and directors, except for liabilities resulting
from their own malfeasance.
Item 16. Exhibits and Financial Statement Schedules.
A list of exhibits included as part of this Registration Statement is
set forth in the Index to Exhibits which immediately precedes such exhibits
and is incorporated herein by reference.
Item 17. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed
with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes
in volume and price represent no more than
a 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration
statement;
Provided, however, that paragraphs (a)(i) and
(a)(ii) do not apply if the registration
statement is on Form S-3, Form S-8, or Form F-3,
and the information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed or furnished
to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(b) That, for the purpose of determining any
liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
II-2
<PAGE>
(2) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Fort Worth, State of Texas, on
March 18, 1998.
BURLINGTON NORTHERN SANTA FE CORPORATION
By /s/ Jeffrey R. Moreland
-----------------------------
Jeffrey R. Moreland
Senior Vice President-Law and
Chief of Staff
S-1
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes any
Authorized Officer acting alone to execute in the name of such person and
in the capacity indicated below, and to file, any amendments to this
Registration Statement which any Authorized Officer deems necessary or
advisable to enable the Registrant to comply with the Securities Act of
1933, as amended, and any rules, regulations, and requirements of the
Securities and Exchange Commission in respect thereof, and to take any
other action on behalf of such person which any Authorized Officer deems
necessary or desirable in connection herewith. The term "Authorized
Officer" as applied with respect to any action taken pursuant to this
authorization means (i) any person who is the Registrant's President and
Chief Executive Officer or Senior Vice President-Law and Chief of Staff at
the time such action shall be taken and (ii) any other officer of the
Registrant or of a wholly-owned subsidiary of the Registrant who shall be
authorized by any person identified in clause (i) to act as an Authorized
Officer for purposes of this paragraph.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the 18th day of March, 1998.
||
/s/ Robert D. Krebs
- ----------------------------------------------
Robert D. Krebs, Chairman, President and Chief
Executive Officer (Principal Executive Officer)
and Director
/s/ Denis E. Springer
- --------------------------------------------------
Denis E. Springer, Senior Vice President and Chief
Financial Officer (Principal Financial Officer)
/s/ Thomas N. Hund
- ---------------------------------------------
Thomas N. Hund, Vice President and Controller
(Principal Accounting Officer)
/s/ Joseph F. Alibrandi
- -----------------------------
Joseph F. Alibrandi, Director
/s/ Jack S. Blanton
- -------------------------
Jack S. Blanton, Director
/s/ John J. Burns, Jr.
- ----------------------------
John J. Burns, Jr., Director
/s/ Daniel J. Evans
- -------------------------
Daniel J. Evans, Director
/s/ George Deukmejian
- --------------------------
George Deukmejian, Director
<PAGE>
/s/ Marc J. Shapiro
- -------------------------
Marc J. Shapiro, Director
/s/ Bill M. Lindig
- ------------------------
Bill M. Lindig, Director
/s/ Robert H. West
- ------------------------
Robert H. West, Director
/s/ Roy S. Roberts
- ------------------------
Roy S. Roberts, Director
/s/ Edward E. Whitacre, Jr.
- ---------------------------------
Edward E. Whitacre, Jr., Director
/s/ Arnold R. Weber
- --------------------------
Arnold R. Weber, Director
/s/ J. Steven Whisler
- ---------------------------
J. Steven Whisler, Director
/s/ Ronald B. Woodward
- ---------------------------
Ronald B. Woodward, Director
/s/ Michael B. Yanney
- ---------------------------
Michael B. Yanney, Director
- ----------------------------
Vilma S. Martinez, Director
||
S-2
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Document
- ------- ------------------------
1 Underwriting Agreement, dated as of December 6, 1995 between the
Company and Goldman, Sachs & Co., J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated and Salomon Brothers Inc. (filed
herewith).
4 Indenture, dated as of December 1, 1995, between the Company and
The First National Bank of Chicago, as Trustee (filed herewith).
5 Opinion of Mayer, Brown & Platt (filed herewith).
12 Statement of Computation of Ratio of Earnings to Fixed Charges
(filed herewith).
13.1 Report of Independent Acountants (Coopers & Lybrand L.L.P.)
(filed herewith).
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5).
23.2 Consent of Price Waterhouse LLP (filed herewith).
23.3 Consent of Coopers & Lybrand L.L.P. (filed herewith).
24 Powers of Attorney (included on the signature page of this
registration statement).
25 Form T-1 Statement of Eligibility of Qualification under the Trust
Indenture Act of 1939 of The First National Bank of Chicago (filed
herewith).
E-1
Exhibit 1
Burlington Northern Santa Fe Corporation
Debt Securities
---------------
Underwriting Agreement
----------------------
December 6, 1995
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
As representatives of the several
underwriters listed in Schedule I
to the applicable Pricing Agreement
Dear Sirs:
From time to time Burlington Northern Santa Fe Corporation, a
Delaware corporation (the "Company"), proposes to enter into one or more
Pricing Agreements in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Company to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal
amount of such
-1-
<PAGE>
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities,
the names of the Representatives of such Underwriters and the principal
amount of such Designated Securities to be purchased by each Underwriter
and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the
registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement in respect of the Securities
has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated
by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been
declared effective by the Commission in such form; no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; and no stop order
suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Securities Act of 1933, as amended (the
"Act"), or any preliminary prospectus supplement used in
connection with a particular offering of Securities, being
hereinafter called a "Preliminary Prospectus"; the various parts
of such registration statement, including all exhibits thereto and
the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of
the registration statement became effective but excluding Form
T-1, each as amended at the time such part of the registration
statement becomes effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the
Securities (but excluding any supplement thereto relating to
Designated Securities), in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or
before the date of this Agreement or the Pricing Agreement (if
this Agreement and the Pricing Agreement are not signed at the
same time), being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to the applicable form under the
Act, to the extent filed on or before the date of such reference;
any reference to any
-2-
<PAGE>
amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer
to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for
use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
-3-
<PAGE>
(d) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, which is material to the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Registration Statement and
the Prospectus, there has not been any change in the capital stock
(other than increases in the stock of the Company as the result of
the issuance of shares pursuant to any of the Company's stock
option plans) or any material change in long-term debt of the
Company and its subsidiaries or any material adverse change, or
any development that the Company has a reasonable cause to believe
involves a prospective material adverse change, in the business,
financial position, shareholders' equity or results of operations
of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership
or leasing of its property requires such qualification, except
where failure to qualify would not in the aggregate have a
material adverse effect upon the Company and its subsidiaries
taken as a whole; and each of Burlington Northern Inc., Burlington
Northern Railroad Company, Santa Fe Pacific Corporation and The
Atchison, Topeka and Santa Fe Railway Company (each hereinafter
referred to as a "Significant Subsidiary" or collectively as the
"Significant Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation;
-4-
<PAGE>
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable; and all of the issued
shares of capital stock of each Significant Subsidiary of the
Company have been duly and validly authorized and issued, are
fully paid and non-assessable and except as set forth in the
Prospectus are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(h) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such
Designated Securities, such Designated Securities will have been
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement; assuming the due authorization and execution by the
Trustee, the Indenture has been duly authorized and duly qualified
under the Trust Indenture Act and, at the Time of Delivery for
such Designated Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture
conforms and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(i) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject except
for such conflicts, breaches, violations or defaults that will not
individually or in the aggregate have a material adverse effect on
the business, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties
except for such violations (other than with respect to the
Company's Certificate of Incorporation or By-laws) that will not
individually or in the aggregate have a material adverse effect on
the business, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
-5-
<PAGE>
sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will have
been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which the
Company has reasonable cause to believe will individually or in
the aggregate have a material adverse effect on the financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
and
(k) Price Waterhouse LLP and Coopers & Lybrand L.L.P.,
who have certified certain financial statements of the Company and
its subsidiaries, are independent public accountants as required
by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to
the extent practicable, and in such authorized denominations and registered
in such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by certified or official bank check or checks or such funds as may
be designated in the Pricing Agreement, payable to the order of the Company
in the funds specified in such Pricing Agreement, all at the place and time
and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for
such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented
in relation to the applicable Designated Securities in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day
following the execution and delivery of the
-6-
<PAGE>
Pricing Agreement relating to the applicable Designated Securities
or, if applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities
without giving you advance notice thereof and an opportunity to
comment thereon; to advise the Representatives promptly of any
such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant
to Section 13(a), required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such
Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time take such action as the
Representatives may reasonably request to qualify such Securities
for offering and sale under the securities laws of such
jurisdictions in the United States as the Representatives may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of
such Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the date of the Prospectus as
amended or supplemented in connection with the offering or sale of
the Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the
-7-
<PAGE>
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance and
in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Securities at any time nine
months or more after the date of the Prospectus as amended or
supplemented, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earning statement of the Company and
its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule
158); and
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to
and including the Time of Delivery for such Designated Securities,
not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to
such Designated Securities, without the prior written consent of
the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing
or reproducing this Agreement, any Pricing Agreement, any Indenture, and
the Blue Sky Memorandum and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof,
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky survey; (iv) any fees charged by securities rating services
for rating the Securities; (v) the cost of preparing the Securities; (vi)
the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities (to the extent the Trustee does not pay such
fees); and (vii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise
-8-
<PAGE>
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated
Securities shall be subject, in the discretion of the Representatives, to
the condition that all representations and warranties and other statements
of the Company in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of
Delivery for such Designated Securities, true and correct in all material
respects, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Securities shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(c) hereof; no stop
order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters,
using reasonable efforts, shall have furnished to the
Representatives such opinion or opinions, dated the Time of
Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Securities being
delivered at such Time of Delivery, the Registration Statement,
the Prospectus, and other related matters as the Representatives
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Mayer, Brown & Platt, counsel for the Company, shall
have furnished to the Representatives their written opinion, which
may be subject to reasonable and customary assumptions,
qualifications and limitations and shall be dated such Time of
Delivery, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as amended
or supplemented, and all of the issued shares of capital
-9-
<PAGE>
stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing in each jurisdiction in which the
conduct of its business or the ownership or leasing of
property requires such qualification, except where
failure to qualify would not in the aggregate have a
material adverse effect upon the Company and its
subsidiaries taken as a whole;
(iv) Each Significant Subsidiary of the Company
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation; and all of the issued
shares of capital stock of each such subsidiary have been
duly and validly authorized and issued, are fully paid
and non-assessable, and (except for directors' qualifying
shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities or claims;
(v) To such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the
subject which the Company has reasonable cause to believe
will individually or in the aggregate have a material
adverse effect on the financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to such counsel's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered
and constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the
Indenture, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(viii) Assuming due authorization and execution
by the Trustee, the Indenture has been duly authorized,
executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
-10-
<PAGE>
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(ix) Assuming due authorization and execution by
the Trustee, the issue and sale of the Designated
Securities and the compliance by the Company with all of
the provisions of this Agreement and the Pricing
Agreement with respect to the Designated Securities and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, the effects of which would, in the aggregate, be
materially adverse to the Company and its subsidiaries
taken as a whole, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute,
order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of
their properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the issue
and sale of the Designated Securities or the consummation
by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture with
respect to the Designated Securities, except as have been
obtained under the Act and the Trust Indenture Act, and
such consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(xi) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and other financial data therein, as
to which such counsel need express no opinion or belief),
when they became effective or were filed with the
Commission, as the case may be, appear to have complied
as to form in all material respects with the requirements
of the Act, or the Exchange Act, as applicable, and the
rules and regulation of the Commission thereunder; and
such counsel shall also state that no facts have come to
their attention that lead them to believe that any of
such documents, when such documents became effective or
were so filed, as the case may be, contained, in the case
of a registration statement which became effective under
the Act, an untrue statement of a material fact, or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were
filed under the Act or
-11-
<PAGE>
the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made
when such documents were so filed, not misleading; and
(xii) The Registration Statement and the
Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the Company
prior to the Time of Delivery for the Designated
Securities (other than the financial statements and other
financial data therein, as to which such counsel need
express no opinion or belief) appear to comply as to form
in all material respects with the requirements of the Act
and the rules and regulations thereunder; such counsel
shall also state that no facts have come to their
attention that lead them to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time
of Delivery (other than the financial statements and
other financial data therein, as to which such counsel
need express no opinion or belief) contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as
of its date, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the
financial statements and other financial data therein, as
to which such counsel need express no opinion or belief)
contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in
which they were made, not misleading or that, as of the
Time of Delivery, either the Registration Statement or
the Prospectus as amended or supplemented or any other
amendment or supplement thereto made by the Company prior
to such Time of Delivery (other than the financial
statements and other financial data therein, as to which
such counsel need express no opinion or belief) contains
an untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein,
in light of the circumstances in which they were made,
not misleading, and they do not know of any amendment to
the Registration Statement required to be filed or any
contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus
as amended or supplemented which are not filed or
incorporated by reference or described as required.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
federal laws of the United States and the General Corporation Law of the
State of Delaware and shall be entitled to rely in respect of the opinion
in this clause upon opinions of local counsel believed to be reputable or
counsel employed by the Company, and in respect of matters of fact, upon
certificates of officers of the Company or its transfer agent;
-12-
<PAGE>
(d) On the date of the Pricing Agreement for such
Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the Company
who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives
a letter, dated the date of the Pricing Agreement for such
Designated Securities and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with
respect to such letter dated such Time of Delivery, as to such
other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented
there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in the
business, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in
Clause (i) or (ii), is in the reasonable judgment of the
Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as amended or
supplemented;
(f) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities
by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a National Emergency or war, if the effect of any
such event specified in this clause (iii) in the reasonable
judgment of the Representatives makes it impracticable or
inadvisable to
-13-
<PAGE>
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated by the
Prospectus as amended and supplemented; and
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery of the
Designated Securities a certificate or certificates of officers of
the Company satisfactory to the Representatives as to the accuracy
in all material respects of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, and as to the
matters set forth in subsections (a) and (e) of this Section.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Securities prepared by the Company, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, Prospectus or the Registration Statement, or
any such amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities, and provided, further, that the Company shall not be liable to
any Underwriter under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus, any preliminary prospectus
supplement, or with respect to any Prospectus as amended or supplemented,
to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold Securities to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) if the Company
has previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as
-14-
<PAGE>
amended or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party,
and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding the
foregoing, in no event shall more than one such separate counsel
in each jurisdiction where an action is commenced be retained for
all indemnified Parties together and neither the indemnified Party
nor the indemnifying Party, in the instance where the indemnifying
Party has assumed the defense of the indemnified Party, shall
settle any action, proceeding or investigation with respect to the
indemnified Party without the written consent of the other, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute
to the amount paid or payable to such indemnified party as a
result of such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate to
reflect the relative
-15-
<PAGE>
benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the
Company to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, prejudice resulting
from any failure to give notice of any action under sub-section
(c), knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the applicable
Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not
joint.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the
-16-
<PAGE>
meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties reasonably satisfactory to the representatives to purchase such
Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or
the Company notifies the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives or the Company
shall have the right to postpone the Time of Delivery for such Designated
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase
under the Pricing Agreement relating to such Designated Securities
and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase
under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of
-17-
<PAGE>
Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof or as the result of the failure to satisfy the condition
set forth in Section 7(g) hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Designated Securities
covered by such Pricing Agreement except as provided in Section 6 and
Section 8 hereof; but, if for any other reason Designated Securities are
not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the Representatives for all
reasonable out-of-pocket expenses approved in writing by the
Representatives, including reasonable fees and disbursements of counsel,
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the
Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives
as set forth in the Pricing Agreement; and if to the Company, shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement: Attention:
Corporate Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex
or facsimile transmission to such Underwriter at its address set forth in
its Underwriters'
-18-
<PAGE>
Questionnaire or telex constituting such Questionnaire, which address will
be supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of the Company and each person who controls the
Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
-19-
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us eight counterparts hereof.
Very truly yours,
BURLINGTON NORTHERN SANTA FE
CORPORATION
By: /s/ Patrick J. Ottensmeyer
------------------------------
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
SALOMON BROTHERS INC
By: GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
------------------------
Name:
Title:
By: J.P. MORGAN SECURITIES INC.
By: /s/ T. Kelley Millet
-------------------------
Name: T. Kelley Millet
Title: Managing Director
On behalf of each of the Underwriters
-20-
<PAGE>
ANNEX I
PRICING AGREEMENT
__________________, 19__
[
Underwriters
]
As Representatives of the several
Underwriters named in Schedule I hereto
Dear Sirs:
Burlington Northern Santa Fe Corporation, a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated __________, 199_ (the
"Underwriting Agreement"), between the Company on the one hand and [ ] as
Co-Representatives, on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE>
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us seven counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Company. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
BURLINGTON NORTHERN SANTA FE
CORPORATION
By: __________________________
Name:
Title:
Accepted as of the date hereof:
By: __________________________
Name:
Title:
On behalf of each of the Underwriters
2
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
-----------
[ ] $
[Names of Underwriters] $
------------
Total...................................................... $
============
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
___% of the principal amount of the Designated
Securities, plus accrued interest from ______________ to _____________
[and accrued amortization, if any, from ________________ to
____________]
Purchase Price by Underwriters:
__% of the principal amount of the Designated
Securities, plus accrued interest from __________ to _________ [and
accrued amortization, if any, from ____________ to ____________]
Specified funds for payment of purchase price:
[By certified or official bank check or checks, payable to the order of
the Company in [[New York] [Clearing House] [immediately available]
[funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available funds]
Indenture:
Indenture dated ____________, 19__, between the Company
and _________________, as Trustee
Maturity:
Interest Rate:
[__%] [Zero Coupon] [See Floating Rate Provisions]
II-1
<PAGE>
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise
than through the sinking fund, in whole or in part at the option of the
Company, in the amount of [$] or an integral multiple thereof,
[on or after ______________, at the following redemption prices
(expressed in percentages of principal amount.) (f [redeemed on or
before _____________, ___% and if] redeemed during the 12-month period
beginning _______________,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling in or after ______________,
__________, at the election of the Company, at a redemption price equal
to the principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$] principal amount of Designated Securities on __________ in
each of the years __________ through ______ at 100% of their principal
amount plus accrued interest][, together with
II-2
<PAGE>
[cumulative] [noncumulative] redemptions at the option of the Company to
retire an additional [$] principal amount of Designated Securities in
the years ______ through ______ at 100% of their principal amount plus
accrued interest].
[If Securities are extendable debt Securities, insert --
Extendable provisions:
Securities are repayable on ________, [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be ________%, and thereafter annual
interest rate will be adjusted on ___________, _______ and ___________
to a rate not less than __% of the effective annual interest rate on
U.S. Treasury obligations with ___________-year maturity date].]
[If Securities are Floating Rate debt Securities, insert --
Floating rate provisions:
Initial annual interest rate will be __% through ________ and thereafter
will be adjusted [monthly] [on each _____________, ________________, and
____________] [to an annual rate of __% above the average rate for
_____-year [month] [securities] [certificates of deposit] issued by
________ and ________ [insert names of banks].] [and the annual interest
rate [thereafter] [from __________ through ___________] will be the
interest yield equivalent of the weekly average per annum market
discount rate for _____-month Treasury bills plus __% of Interest
Differential (the excess, if any, of (i) then current weekly average per
annum secondary market yield for _____-month certificates of deposit
over (ii) then current interest yield equivalent of the weekly average
per annum market discount rate for ____-month Treasury bills); [from
_________ and thereafter the rate will be the then current interest
yield equivalent plus ___% of Interest Differential].]
Defeasance provisions:
Terms of Delivery:
Closing Location:
II-3
<PAGE>
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
II-4
<PAGE>
ANNEX II
DESCRIPTION OF COMFORT LETTER OF
COOPERS & LYBRAND AND PRICE WATERHOUSE
I. Coopers & Lybrand L.L.P. shall deliver to the Underwriters a letter with
respect to the Company and with respect to Burlington Northern Inc. ("BNI")
to the effect that:
A. They are independent accountants with respect to the Company and
BNI within the meaning of the Act and the applicable published
rules and regulations thereunder.
B. In their opinion, the consolidated financial statements and
financial statement schedules of BNI audited by them and
incorporated by reference in the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the published rules and regulations
thereunder with respect to registration statements on Form S-3.
C. They have not audited any financial statements of BNI as of any date
or for any date or for any period subsequent to December 31, 1994;
although they have conducted an audit for the year ended
December 31, 1994, the purpose (and therefore the scope) of such
audit was to enable them to express their opinion on the consolidated
financial statements as of December 31, 1994 and for the year then
ended, but not on the financial statements for any interim period
within such year. Therefore, they are unable to and do not express
any opinion on the unaudited consolidated balance sheets and the
unaudited consolidated statements of operations and of cash flows
incorporated by reference in the Registration Statement or on the
financial position, results of operations or cash flows as of any
date or for any period subsequent to December 31, 1994.
D. BNSF was incorporated in Delaware on December 16, 1994, for the
purpose of effecting a business combination between BNI and Santa
Fe Pacific Corporation (SFP) under the Holding Company Structure.
Under the Holding Company Structure, BNSF created two
subsidiaries. One such subsidiary merged with and into BNI, and
the other such subsidiary merged with and into SFP. Each holder of
one share of BNI common stock received one share of BNSF common
stock and each holder of one share of SFP common stock received
0.41143945 shares of BNSF common stock. The rights of each
stockholder of BNSF are substantially identical to the rights of a
stockholder of BNI, and the Holding Company Structure has the same
economic effect with respect to the stockholders of BNI and SFP as
would a direct merger of BNI and SFP. As a result of the merger,
BNI became a wholly-owned subsidiary of the Company.
AII-1
<PAGE>
E. They have not audited any financial statements of BNSF. The BNSF
unaudited consolidated statements of income for the three-month and
nine-month periods ended September 30, 1995 and 1994, and cash flows
for the nine-month periods ended September 30, 1995 and 1994 include
in the Company's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1995, reflect BNI's historical results for
such periods and SFP's results from September 22, 1995 (the effective
date of the Merger) through September 30, 1995. The unaudited
consolidated balance sheets of BNSF included in the Company's
quarterly Report on Form 10-Q reflects (i) BNI historical amounts at
December 31, 1994 and (ii) BNI historical amounts plus assets and
liabilities of SFP at September 30, 1995, including the fair value
write-up of SFP resulting from the application of purchase accounting.
They are unable to and do not express any opinion on the unaudited
consolidated balance sheet of BNSF as of September 30, 1995, the
unaudited consolidated statements of income and cash flows for the
three-month and nine-month periods ended September 30, 1995 and 1994,
included in the Company's Quarterly Report on Form 10-Q for the
quarterly periods ended September 30, 1995, incorporated by reference
in the Registration Statement.
F. For purposes of this letter, they have read certain minutes of
meetings of the Board of Directors of the Company and BNI and have
carried out other procedures to a date within three business days of
the date of the related Pricing Agreement (the "Cut-Off Date") as
follows:
1. With respect to the three-month periods ended March 31,
1995 and 1994 and the three-month and six-month periods
ended June 30, 1995 and 1994 and the three- and
nine-month periods ended September 30, 1995 and 1994 of
BNI, and the three-month and nine-month periods ended
September 30, 1995 and 1994 of both the Company and BNI,
they have:
(i). performed the procedures specified by the American
Institute of Certified Public Accountants for a
review of interim financial information as
described in SAS No. 71, Interim Financial
Information, on the unaudited consolidated balance
sheets and the unaudited consolidated statements of
operations and of cash flows for the periods
included in BNI's Quarterly Report on Form 10-Q for
the quarters ended March 31, June 30, and
September 30, 1995, all incorporated by reference
in the Registration Statement.
(ii). inquired of certain officials of the Company and
BNI who have responsibility for financial and
accounting matters whether the unaudited
consolidated financial statements referred to in
1(i) comply as to form in all material respects
with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and
the published rules and regulations thereunder.
AII-2
<PAGE>
2. With respect to the period from October 1, 1995 to October 31,
1995, they have:
(i). read the unaudited consolidated financial
statements of both the Company and BNI for October
of both 1995 and 1994, furnished to us by the
Company (these unaudited consolidated financial
statements did not include footnotes), officials
of the Company having advised us that no such
financial statements as of any date or for any
period subsequent to October 31, 1995 were
available.
(ii). inquired of certain officials of both the Company
and BNI who have responsibility for financial and
accounting matters whether the unaudited
consolidated financial statements referred to in
2(a) are stated on basis substantially consistent
with that of the audited consolidated financial
statements of BNI incorporated by reference in the
Registration Statement.
G. Nothing came to their attention as a result of the foregoing
procedures that caused them to believe that:
1. (i). any material modifications should be made to the
unaudited consolidated financial statements
described in F(1)(a), incorporated by reference in
the Registration Statement, for them to be in
conformity with generally accepted accounting
principles.
(ii). the unaudited consolidated financial statements
described in F(1)(a), incorporated by reference
in the Registration Statement, do not comply as
to form in all material respects with the
applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the
related published rules and regulations
thereunder.
2. (i). at October 31, 1995, there was any change
in the common stock, long-term debt including
current portion and commercial paper, net
current liabilities or stockholders' equity of
the Company as compared with amounts shown in
the September 30, 1995 unaudited consolidated
balance sheet, incorporated by reference in the
Registration Statement, except in all instances
for changes that the Registration Statement
discloses have occurred or may occur.
(ii). for the period from October 1, 1995 to October
31, 1995, there were any changes, as compared to
the corresponding period in the preceding year,
in revenues, net income or earnings per common
share of the Company, except in all instances
for changes that the Registration Statement
discloses have occurred or may occur.
AII-3
<PAGE>
3. (i). at October 31, 1995, there was any change
in the common stock and additional paid-in
capital, long-term debt including current
portion and commercial paper, net current
liabilities or stockholder's equity of BNI as
compared with amounts shown in the September 30,
1995 unaudited consolidated balance sheet,
incorporated by reference in the Registration
Statement, except in all instances for changes
that the Registration Statement discloses have
occurred or may occur.
(ii). for the period from October 1, 1995 to October
31, 1995, there were any changes, as compared to
the corresponding period in the preceding year,
in revenues or net income of BNI, except in all
instances for changes that the Registration
Statement discloses have occurred or may occur.
H. They have made inquiries of certain officials of BNI who have
responsibility for financial and accounting matters as to whether at
the Cut-Off Date there was any change in capital stock or increase in
long-term debt of BNI as compared with amounts shown on the most
recent unaudited consolidated balance sheet information incorporated
by reference in the Registration Statement. On the basis of these
inquiries and their reading of the minutes as described in F, nothing
came to their attention that caused them to believe that there
was any such change or increase, except in all instances for changes
which the Registration Statement discloses have occurred or may occur
except as described in their letter.
I. They also performed the following procedures:
1. read the unaudited pro forma combined balance sheets and
the related unaudited pro forma combined statements of
operations incorporated by reference in the Registration
Statement.
2. inquired of certain officials of the Company and BNI and
of certain officials of Santa Fe Pacific Corporation who
have responsibility for financial and accounting matters
about: (a) the basis for their determination of the pro
forma adjustments; and (b) whether the unaudited pro
forma combined financial statements referred to in (1)
comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X.
3. compared the historical financial information for BNI in
the pro forma combined financial statements incorporated
by reference in the registration statement with the
historical financial information for BNI in the audited
consolidated financial statements described in the
introductory paragraph of this letter or to amounts in
the unaudited consolidated financial statements described
in G(1) to the extent such amounts are included in or can
be derived from such statements, and found them to be in
agreement.
AII-4
<PAGE>
4. proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the
unaudited pro forma combined financial statements.
J. Nothing came to their attention as a result of such procedures
that caused them to believe that such unaudited pro forma combined
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X and that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements.
K. For the purposes of this letter, they have also read the items
identified by the Underwriters on the attached copy of the
documents forming part of the Registration Statement and have
performed specified procedures which were applied as indicated to
the items identified on the attached copy of such documents.
II. Price Waterhouse LLP shall deliver to the Underwriters a letter
with respect to the Company and Santa Fe Pacific Corporation
("SFP") to the effect that:
A. They are independent accountants with respect to the Company and
SFP within the meaning of the Act and the applicable published
rules and regulations thereunder.
B. In their opinion, the consolidated financial statements audited by
them and incorporated by reference in the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Securities Exchange Act
of 1934 (the "Exchange Act") and the published rule and
regulations thereunder with respect to registration statements on
Form S-3.
C. They have not audited any financial statements of SFP as of any date
or for any period subsequent to December 31, 1994; although they have
conducted an audit for the year ended December 31, 1994, the purpose
(and therefore the scope) of such audit was to enable them to express
their opinion on the consolidated financial statements as of
December 31, 1994 and for the year then ended, but not on the
financial statements for any interim period within such year.
Therefore, they are unable to and do not express any opinion on the
unaudited consolidated statements of operations and of cash flows
incorporated by reference in the Registration Statement or on the
financial position, results of operations or cash flows as of any
date or for any period subsequent to December 31, 1994.
D. With respect to the three-month periods ended March 31, 1995 and
1994, the three- and six-month periods ended June 30, 1995 and
1994 and the period from January 1, 1995 through September 21,
1995, they have read the minutes of specified meetings of the
Board of Directors of SFP and have carried out other procedures to
a date within three business days prior to the date of the related
Pricing Agreement (the "Cut-Off Date") as follows:
AII-5
<PAGE>
1. performed the procedures specified by the American Institute
of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim
Financial Information, on the unaudited consolidated balance
sheets and the unaudited consolidated statements of
operations and of cash flows for the periods included in
SFP's quarterly reports on Form 10-Q for the quarters ended
March 31 and June 30, 1995 incorporated by reference in
the Registration Statement and read the unaudited consolidated
statement of operations for the period from January 1, 1995
through September 21, 1995; and
2. inquired of certain officials of SFP who have responsibility
for financial and accounting matters whether the unaudited
consolidated financial statements incorporated by reference
in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the
published rules and regulations thereunder and whether the
unaudited consolidated statement for the period
January 1, 1995 through September 21, 1995 is stated on the
basis substantially consistent with that of the corresponding
amounts in the audited consolidated financial statements
incorporated by reference in the Registration Statement.
E. Nothing came to their attention as a result of the foregoing
procedures that caused them to believe that:
1. (i) the unaudited consolidated financial statements
describe in D(1) above, incorporated by reference in the
Registration Statement, do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form
10-Q and the published rules and regulations thereunder
or (ii) any material modifications should be made to the
unaudited consolidated financial statements described in
D(1) for them to be in conformity with generally accepted
accounting principles; or
2. the unaudited consolidated statement of operations for
the period January 1, 1995 through September 21, 1995 was
not stated on a basis substantially consistent with that
of the corresponding amounts in the audited financial
statements incorporated by reference in the Registration
Statement; or
3. for the period from January 1, 1995 to September 21,
1995, there were any decreases, as compared with the
corresponding period in the preceding year, in revenues
or in the total or per-share amounts of income from
continuing operations or of net income, except in all
instances for changes or decreases which the Registration
Statement discloses have occurred or may occur.
F. They also performed the following procedures:
AII-6
<PAGE>
1. read the unaudited pro forma combined statements of
operations incorporated by reference in the Registration
Statement.
2. inquired of certain officials of the Company and SFP who
have responsibility for financial and accounting matters
about (a) the basis for their determination of the pro
forma adjustments; and (b) whether the unaudited pro
forma combined financial statements referred to in (1)
comply as to form in all material respect with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X.
3. compared the historical financial information for SFP in the
pro forma combined statements of operations incorporated by
reference in the Registration Statement with the historical
financial information for SFP in the audited consolidated
financial statements described in the introductory paragraph
of their letter or to amounts in the unaudited consolidated
statement of operations for the period January 1, 1995
through September 21, 1995 described in D(1) to the extent
such amounts are included in or can be derived from such
statements, and found them to be in agreement.
4. proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the unaudited
pro forma combined statements of operations.
G. Nothing came to their attention as a result of such procedures
that caused them to believe that such unaudited pro forma combined
statements of operations does not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X and that the pro form a adjustments
have not been properly applied to the historical amounts in the
compilation of those statements.
H. For purposes of this letter, they have also read the items
identified by the Underwriters on the attached copy of the
documents forming part of the Registration Statement and have
performed specific procedures which were applied as indicated to
the items identified on the attached copy of such documents.
AII-7
Exhibit 4
================================================================================
BURLINGTON NORTHERN SANTA FE CORPORATION
Issuer
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
---------------
Indenture
Dated as of December 1, 1995
---------------
================================================================================
<PAGE>
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
ss.310(a)(1) ............................................609
(a)(2) ............................................609
(a)(3) ............................................Not Applicable
(a)(4) ............................................Not Applicable
(b) ............................................608
610
ss.311(a) ............................................613
(b) ............................................613
ss.312(a) ............................................701
702
(b) ............................................702
(c) ............................................702
ss.313(a) ............................................703
(b) ............................................703
(c) ............................................703
(d) ............................................703
ss.314(a) ............................................704
(a)(4) ............................................101
1004
(b) ............................................Not Applicable
(c)(1) ............................................102
(c)(2) ............................................102
(c)(3) ............................................Not Applicable
(d) ............................................Not Applicable
(e) ............................................102
ss.315(a) ............................................601
(b) ............................................602
(c) ............................................601
(d) ............................................601
(e) ............................................514
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE>
Trust Indenture
Act Section Indenture Section
ss.316(a) .........................................101
(a)(1)(A) .........................................502
512
(a)(1)(B) .........................................513
(a)(2) .........................................Not Applicable
(b) .........................................508
(c) .........................................104
ss.317(a)(1) .........................................503
(a)(2) .........................................504
(b) .........................................1003
ss.318(a) .........................................107
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION........................ 1
SECTION 101. Definitions................................................ 1
"Act"......................................................... 2
"Affiliate"................................................... 2
"Authenticating Agent"........................................ 2
"Board of Directors".......................................... 2
"Board Resolution"............................................ 2
"Business Day"................................................ 2
"Commission".................................................. 2
"Company"..................................................... 3
"Company Request" or "Company Order".......................... 3
"Corporate Trust Office"...................................... 3
"corporation"................................................. 3
"Covenant Defeasance"......................................... 3
"Debt"........................................................ 3
"Defaulted Interest".......................................... 3
"Defeasance".................................................. 3
"Depositary".................................................. 3
"Event of Default"............................................ 3
"Exchange Act"................................................ 3
"Expiration Date"............................................. 3
"Global Security"............................................. 3
"Holder"...................................................... 3
"Indenture"................................................... 4
"interest".................................................... 4
"Interest Payment Date"....................................... 4
"Investment Company Act"...................................... 4
"Lien"........................................................ 4
"Maturity".................................................... 4
"Notice of Default"........................................... 4
"Officers' Certificate"....................................... 4
"Opinion of Counsel".......................................... 4
"Original Issue Discount Security"............................ 4
"Outstanding"................................................. 4
"Paying Agent"................................................ 6
"Person"....................................................... 6
"Place of Payment"............................................. 6
-i-
<PAGE>
Page
"Predecessor Security"........................................ 6
"Redemption Date"............................................. 6
"Redemption Price"........................................... 6
"Regular Record Date"........................................ 6
"Repayment Date"............................................. 6
"Responsible Officer"........................................ 6
"Restricted Subsidiary"...................................... 7
"Securities"................................................. 7
"Securities Act"............................................. 7
"Security Register" and "Security Registrar"................. 7
"Special Record Date"........................................ 7
"Stated Maturity"............................................ 7
"Subsidiary"................................................. 7
"Trust Indenture Act"........................................ 7
"Trustee".................................................... 7
"U.S. Government Obligation"................................. 7
"Vice President"............................................. 8
"Yield to Maturity".......................................... 8
SECTION 102. Compliance Certificates and Opinions....................... 8
SECTION 103. Form of Documents Delivered to Trustee..................... 8
SECTION 104. Acts of Holders; Record Dates.............................. 9
SECTION 105. Notices, Etc., to Trustee and Company...................... 11
SECTION 106. Notice to Holders; Waiver.................................. 12
SECTION 107. Conflict with Trust Indenture Act.......................... 12
SECTION 108. Effect of Headings and Table of Contents................... 12
SECTION 109. Successors and Assigns..................................... 12
SECTION 110. Separability Clause........................................ 13
SECTION 111. Benefits of Indenture...................................... 13
SECTION 112. Governing Law.............................................. 13
SECTION 113. Legal Holidays............................................. 13
ARTICLE TWO
SECURITY FORMS......................... 13
SECTION 201. Forms Generally............................................ 13
SECTION 202. Form of Face of Security................................... 14
SECTION 203. Form of Reverse of Security................................ 16
SECTION 204. Form of Legend for Global Securities....................... 22
SECTION 205. Form of Trustee's Certificate of Authentication............ 22
-ii-
<PAGE>
Page
ARTICLE THREE
THE SECURITIES............................ 23
SECTION 301. Amount Unlimited; Issuable in Series....................... 23
SECTION 302. Denominations.............................................. 26
SECTION 303. Execution, Authentication, Delivery and Dating............. 26
SECTION 304. Temporary Securities....................................... 27
SECTION 305. Registration, Registration of Transfer and Exchange........ 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........... 30
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.......................................... 31
SECTION 308. Optional Extension of Maturity............................. 33
SECTION 309. Persons Deemed Owners...................................... 34
SECTION 310. Cancellation............................................... 34
SECTION 311. Computation of Interest.................................... 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE............... 35
SECTION 401. Satisfaction and Discharge of Indenture.................... 35
SECTION 402. Application of Trust Money................................. 36
ARTICLE FIVE
REMEDIES................................. 36
SECTION 501. Events of Default.......................................... 36
SECTION 502. Acceleration of Maturity; Rescission and Annulment......... 38
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................. 39
SECTION 504. Trustee May File Proofs of Claim........................... 40
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities........................................... 40
SECTION 506. Application of Money Collected............................. 41
SECTION 507. Limitation on Suits........................................ 41
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 42
SECTION 509. Restoration of Rights and Remedies......................... 42
SECTION 510. Rights and Remedies Cumulative............................. 42
SECTION 511. Delay or Omission Not Waiver............................... 43
-iii-
<PAGE>
Page
SECTION 512. Control by Holders......................................... 43
SECTION 513. Waiver of Past Defaults.................................... 43
SECTION 514. Undertaking for Costs...................................... 44
SECTION 515. Waiver of Usury, Stay or Extension Laws.................... 44
ARTICLE SIX
THE TRUSTEE.............................. 44
SECTION 601. Certain Duties and Responsibilities........................ 44
SECTION 602. Notice of Defaults......................................... 44
SECTION 603. Certain Rights of Trustee.................................. 45
SECTION 604. Not Responsible for Recitals or Issuance of Securities..... 46
SECTION 605. May Hold Securities........................................ 46
SECTION 606. Money Held in Trust........................................ 46
SECTION 607. Compensation and Reimbursement............................. 46
SECTION 608. Conflicting Interests...................................... 47
SECTION 609. Corporate Trustee Required; Eligibility.................... 47
SECTION 610. Resignation and Removal; Appointment of Successor.......... 47
SECTION 611. Acceptance of Appointment by Successor..................... 49
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.50
SECTION 613. Preferential Collection of Claims Against Company.......... 50
SECTION 614. Appointment of Authenticating Agent........................ 50
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................ 52
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.................................................. 52
SECTION 702. Preservation of Information; Communications to Holders..... 52
SECTION 703. Reports by Trustee......................................... 53
SECTION 704. Reports by Company......................................... 53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE........... 53
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms....... 53
SECTION 802. Successor Substituted...................................... 54
-iv-
<PAGE>
Page
ARTICLE NINE
SUPPLEMENTAL INDENTURES......................... 55
SECTION 901. Supplemental Indentures Without Consent of Holders......... 55
SECTION 902. Supplemental Indentures With Consent of Holders............ 57
SECTION 903. Execution of Supplemental Indentures....................... 58
SECTION 904. Effect of Supplemental Indentures.......................... 58
SECTION 905. Conformity with Trust Indenture Act........................ 58
SECTION 906. Reference in Securities to Supplemental Indentures......... 58
ARTICLE TEN
COVENANTS................................ 58
SECTION 1001. Payment of Principal, Premium and Interest................ 59
SECTION 1002. Maintenance of Office or Agency........................... 59
SECTION 1003. Money for Securities Payments to Be Held in Trust......... 59
SECTION 1004. Statement by Officers as to Default....................... 60
SECTION 1005. Existence................................................. 61
SECTION 1006. Maintenance of Properties................................. 61
SECTION 1007. Payment of Taxes and Other Claims......................... 61
SECTION 1008. Limitation on Liens....................................... 61
SECTION 1009. Waiver of Certain Covenants............................... 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES....................... 62
SECTION 1101. Applicability of Article.................................. 62
SECTION 1102. Election to Redeem; Notice to Trustee..................... 62
SECTION 1103. Selection by Trustee of Securities to Be Redeemed......... 63
SECTION 1104. Notice of Redemption...................................... 63
SECTION 1105. Deposit of Redemption Price............................... 64
SECTION 1106. Securities Payable on Redemption Date..................... 64
SECTION 1107. Securities Redeemed in Part............................... 65
ARTICLE TWELVE
SINKING FUNDS............................. 65
SECTION 1201. Applicability of Article.................................. 65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..... 66
-v-
<PAGE>
Page
SECTION 1203. Redemption of Securities for Sinking Fund................. 66
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF THE HOLDERS.................. 66
SECTION 1301. Applicability of Article.................................. 66
SECTION 1302. Repayment of Securities................................... 67
SECTION 1303. Exercise of Option........................................ 67
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable................................................. 67
SECTION 1305. Securities Repaid in Part................................. 68
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE................... 68
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance............................................. 68
SECTION 1402. Defeasance and Discharge.................................. 69
SECTION 1403. Covenant Defeasance....................................... 69
SECTION 1404. Conditions to Defeasance or Covenant Defeasance........... 70
SECTION 1405. Acknowledgement of Discharge By Trustee................... 72
SECTION 1406. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions................. 72
SECTION 1407. Reinstatement............................................. 72
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES................... 73
SECTION 1501. Exemption from Individual Liability....................... 73
-vi-
<PAGE>
INDENTURE, dated as of _____________, 1995, between Burlington
Northern Santa Fe Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"),
having its principal office at 3800 Continental Plaza, 777 Main Street,
Fort Worth, Texas 76102, and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the "Securities"),
to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION
1011. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and,
1
<PAGE>
except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such
computation;
(4) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or a Section,
as the case may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
2
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in Chicago, Illinois at which at any particular time its corporate trust
business shall be administered, which office is currently located at One
First National Plaza, Suite 1026, Chicago, Illinois 60670-0126.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1403.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1402.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities,
a clearing agency registered under the Exchange Act that is designated to
act as Depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of
the Securities of any series and bears the legend set forth in Section 204
(or such legend as may be specified as contemplated by Section 301 for such
Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
3
<PAGE>
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by Section
301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to
time.
"Lien" means any mortgage, pledge, lien or any other encumbrances.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee. One
of the officers signing an Officers' Certificate given pursuant to Section
1004 shall be the principal executive, financial or accounting officer of
the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
4
<PAGE>
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable
as of such date upon acceleration of the Maturity thereof to such date
pursuant to Section 502, (B) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by Section
301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date
in the manner provided as contemplated by Section 301, of the principal
amount of such Security (or, in the case of a Security described in Clause
(A) or (B) above, of the amount determined as provided in such Clause), and
(D) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other
obligor.
5
<PAGE>
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Security to
be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller or
any other officer of the Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means Burlington Northern Inc., Santa Fe
Pacific Corporation, Burlington Northern Railroad Company, The Atchison,
Topeka and Santa Fe Railway Company and any successor or assign of either
whether by merger or otherwise.
6
<PAGE>
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1404.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security)
7
<PAGE>
and as set forth in such Security in accordance with generally accepted
United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify, or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based,
8
<PAGE>
insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
9
<PAGE>
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to
be given, made or taken by Holders of Securities of such series, provided
that the Company may not set a record date for, and the provisions of this
paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record
date, and no other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior
to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 502, (iii) any request
to institute proceedings referred to in Section 507(2) or (iv) any
direction referred to in Section 512, in each case with respect to
Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities of such series on such
record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall
be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date
for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities of the relevant series on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Company's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to
be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
10
<PAGE>
With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day; provided that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other
party hereto in writing, and to each Holder of Securities of the relevant
series in the manner set forth in Section 106, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party hereto which set
such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the
180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such
notice may be
11
<PAGE>
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under such Act to be
a part of and govern this Indenture, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
12
<PAGE>
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities (other than a provision of any Security which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place
of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution thereof. If the
form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
13
<PAGE>
------------------------------
----------------------------------------
No. __________ $ __________
Burlington Northern Santa Fe Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (herein
called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to _______________, or registered assigns, the principal sum of
____________________ Dollars on ____________________ [if the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon
from _______________ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on __________
and __________ in each year, commencing __________, at the rate of _____%
per annum, until the principal hereof is paid or made available for payment
[if applicable, insert -- , provided that any principal and premium, and
any such instalment of interest, which is overdue shall bear interest at
the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall
be payable on demand]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the __________ or
__________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
Stated Maturity and in such case the overdue principal and any overdue
premium shall bear interest at the rate of _____% per annum (to the extent
that the payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be payable on
demand. [Any such interest on overdue principal or premium which is not
paid on demand shall bear interest at the rate of _____% per annum (to the
extent that the payment of such interest on interest shall be legally
enforceable), from the
14
<PAGE>
date of such demand until the amount so demanded is paid or made available
for payment. Interest on any overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at
the office or agency of the Company maintained for that purpose in
__________, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts
[if applicable, insert -- ; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
---------------------
- --------
By___________________
- --------
Attest:
- -----------------------
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of __________ (herein
called the "Indenture", which term shall have the meaning assigned to it in
such instrument), between the Company and _______________, as Trustee
(herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the
15
<PAGE>
Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the
series designated on the face hereof [if applicable, insert --, limited in
aggregate principal amount to $__________].
[If applicable, insert-- The interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable) on
this Security may be reset by the Company on ____________ (each an
"Optional Reset Date"). The Company may exercise such option with respect
to this Security by notifying the Trustee of such exercise at least 50 but
not more than 60 days prior to an Optional Reset Date for this Security.
Not later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106 of the Indenture, to
the Holder of this Security a notice (the "Reset Notice") indicating
whether the Company has elected to reset the interest rate (or the spread
or spread multiplier used to calculate such interest rate, if applicable),
and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset
Date or if there is no such next Optional Reset Date, to the Stated
Maturity of this Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur
during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest
rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such
interest rate, if applicable) that is higher than the interest rate (or the
spread or spread multiplier, if applicable) provided for in the Reset
Notice, for the Subsequent Interest Period by causing the Trustee to
transmit, in the manner provided for in Section 106 of the Indenture,
notice of such higher interest rate (or such higher spread or spread
multiplier, if applicable) to the Holder of this Security. Such notice
shall be irrevocable. All Securities of this series with respect to which
the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) is reset on an Optional Reset Date, and
with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant
to the next succeeding paragraph, will bear such higher interest rate (or
such higher spread or spread multiplier, if applicable).
The Holder of this Security will have the option to elect
repayment by the Company of the principal of this Security on each Optional
Reset Date at a price equal to the principal amount hereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in
Article Thirteen of the Indenture for repayment at the option of Holders
except that the period for delivery or notification to the Trustee shall be
at least 25 but not more than 35 days prior to such Optional Reset Date and
except that, if the Holder has tendered this Security for repayment
pursuant to the Reset Notice, the Holder may, by written notice to
16
<PAGE>
the Trustee, revoke such tender or repayment until the close of business on
the tenth day before such Optional Reset Date.
[If applicable, insert -- The Stated Maturity of this Security may
be extended at the option of the Company for _______________ (each an
"Extension Period") up to but not beyond ____________ (the "Final
Maturity"). The Company may exercise such option with respect to this
Security by notifying the Trustee of such exercise at least 50 but not more
than 60 days prior to the Stated Maturity of this Security in effect prior
to the exercise of such option (the "Original Stated Maturity"). If the
Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106 of the Indenture, to the Holder of this
Security not later than 40 days prior to the Original Stated Maturity a
notice (the "Extension Notice") indicating (i) the election of the Company
to extend the Maturity, (ii) the new Stated Maturity, (iii) the interest
rate applicable to the Extension Period and (iv) the provisions, if any,
for redemption during such Extension Period. Upon the Trustee's transmittal
of the Extension Notice, the Stated Maturity of this Security shall be
extended automatically and, except as modified by the Extension Notice and
as described in the next paragraph, this Security will have the same terms
as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of this Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish
a higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of this Security. Such notice shall be
irrevocable. All Securities of this series with respect to which the Stated
Maturity is extended will bear such higher interest rate.
If the Company extends the Maturity of this Security, the Holder
will have the option to elect repayment of this Security by the Company on
the Original Stated Maturity at a price equal to the principal amount
hereof, plus interest accrued to such date. In order to obtain repayment on
the Original Stated Maturity once the Company has extended the Maturity
hereof, the Holder hereof must follow the procedures set forth in Article
Thirteen of the Indenture for repayment at the option of Holders, except
that the period for delivery or notification to the Trustee shall be at
least 25 but not more than 35 days prior to the Original Stated Maturity
and except that, if the Holder has tendered this Security for repayment
pursuant to an Extension Notice, the Holder may, by written notice to the
Trustee, revoke such tender for repayment until the close of business on
the tenth day before the Original Stated Maturity.
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert -- (1) on __________ in any year commencing with the
year _____ and ending with the year _____ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount,
17
<PAGE>
and (2)] at any time [if applicable, insert -- on or after __________,
19__], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert -- on or before __________,
_____%, and if redeemed] during the 12-month period beginning __________ of
the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ----------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal
amount, together in the case of any such redemption [if applicable, insert
- -- (whether through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert - The Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, (1) on __________
in any year commencing with the year _____ and ending with the year _____
through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2)
at any time [if applicable, insert -- on or after __________], as a whole
or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning __________ of the years
indicated,
Redemption Price For Redemption
Redemption Price For Redemption Otherwise Than Through Operation
Year Through Operation of the Sinking Fund of the Sinking Fund
- ---- ------------------------------------- --------------------------------
and thereafter at a Redemption Price equal to _____% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity
18
<PAGE>
is on or prior to such Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to __________, redeem any Securities of this series
as contemplated by [if applicable, insert -- Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by
the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than _____% per annum.]
[If applicable, insert -- The sinking fund for this series
provides for the redemption on __________ in each year beginning with the
year _____ and ending with the year _____ of [if applicable, insert -- not
less than $__________ ("mandatory sinking fund") and not more than]
$__________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise
than through [if applicable, insert -- mandatory] sinking fund payments may
be credited against subsequent [if applicable, insert -- mandatory] sinking
fund payments otherwise required to be made [if applicable, insert --, in
the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert --
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set
forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to -- insert formula
for determining the amount. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the
19
<PAGE>
Company's obligations in respect of the payment of the principal of and
premium and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing
Event of Default with respect to the Securities of this series, the Holders
of not less than 25% in principal amount of the Securities of this series
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and
offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities
of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this
Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
any premium and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like
20
<PAGE>
tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $__________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following
form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR
A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
21
<PAGE>
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________________
As Trustee
By__________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section
303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of
any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates on which the principal of any
Securities of the series is payable, or the method by which such
date or dates shall be determined or extended;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates
22
<PAGE>
from which such interest shall accrue, or the method by which such
date or dates shall be determined, the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date,
if any, for the interest payable on any Interest Payment Date, or
the method by which such date or dates shall be determined, and
the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of and any
premium and interest on any Securities of the series shall be
payable;
(6) the period or periods within which, the price or
prices at which and the term and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than by a Board
Resolution, the manner in which any election by the Company to
redeem the Securities shall be evidenced;
(7) the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of the Holder thereof and
the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the
series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(9) if the amount of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;
(10) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America
for any purpose, including for purposes of the definition of
"Outstanding" in Section 101;
(11) if the principal of or any premium or interest on
any Securities of the series is to be payable, at the election of
the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
23
<PAGE>
(12) the percentage of the principal amount at which such
Securities will be issued and, if other than the principal amount
thereof, the portion of the principal amount of Securities of the
series that shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 502 or the method by
which such portion shall be determined;
(13) if the principal amount payable at the Stated
Maturity of any Securities of the series will not be determinable
as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or
hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of any date prior to
the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be
determined);
(14) if applicable, that the Securities of the series, in
whole or any specified part, shall not be defeasible or shall be
defeasible in a manner varying from Section 1402 and Section 1403
and, if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be
evidenced;
(15) if applicable, that any Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the respective Depositaries
for such Global Securities, the form of any legend or legends
which shall be borne by any such Global Security in addition to or
in lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the
last paragraph of Section 305 in which any such Global Security
may be exchanged in whole or in part for Securities registered,
and any transfer of such Global Security in whole or in part may
be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(16) if applicable, that the Securities of the series, in
whole or any specified part, shall be subject to the optional
interest reset provisions of Section 307(b);
(17) if applicable, that the Securities of the series, in
whole or any specified part, shall be subject to the optional
extension of maturity provisions of Section 308;
(18) any addition to or change in the Events of Default
which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable
pursuant to Section 502;
(19) any addition to or change in the covenants set forth
in Article Ten which applies to Securities of the series; and
24
<PAGE>
(20) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered
form without coupons and only in such denominations as shall be specified
as contemplated by Section 301. In the absence of any such specified
denomination with respect to the Securities of any series, the Securities
of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and
the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities. If the form or terms of the Securities of the
series have been established by or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and
25
<PAGE>
(subject to Section 601) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(1) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201,
that such form has been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301,
that such terms have been established in conformity with the
provisions of this Indenture; and
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
26
<PAGE>
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series, of
any authorized denominations and of like tenor and aggregate principal
amount. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of a
series at the office or agency of the Company in a Place of Payment for
that series, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one
or more new Securities of the same series, of any authorized denominations
and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
27
<PAGE>
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
If the Securities of any series (or of any series and specified
tenor) are to be redeemed in part, the Company shall not be required (A) to
issue, register the transfer of or exchange any Securities of that series
(or of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of any such Securities selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a nominee
thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act, (B) there shall have occurred
and be continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for
this purpose as contemplated by Section 301.
28
<PAGE>
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and
all Securities issued in exchange for a Global Security or any
portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a
nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
29
<PAGE>
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.
(a) Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series in the manner
set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
30
<PAGE>
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
(b) The provisions of this Section 307(b) may be made applicable
to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to
such Section 301). The interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) on any Security of
such series may be reset by the Company on the date or dates specified on
the face of such Security (each an "Optional Reset Date"). The Company may
exercise such option with respect to such Security by notifying the Trustee
of such exercise at least 50 but not more than 60 days prior to an Optional
Reset Date for such Security. Not later than 40 days prior to each Optional
Reset Date, the Trustee shall transmit, in the manner provided for in
Section 106, to the Holder of any such Security a notice (the "Reset
Notice") indicating whether the Company has elected to reset the interest
rate (or the spread or spread multiplier used to calculate such interest
rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if
any, for redemption during the period from such Optional Reset Date to the
next Optional Reset Date or if there is no such next Optional Reset Date,
to the Stated Maturity of such Security (each such period a "Subsequent
Interest Period"), including the date or dates on which or the period or
periods during which and the price or prices at which such redemption may
occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest
rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such
interest rate, if applicable) that is higher than the interest rate (or the
spread or spread multiplier, if applicable) provided for in the Reset
Notice, for the Subsequent Interest Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate (or such higher spread or spread multiplier, if applicable)
to the Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) is reset on
an Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have validly
revoked any such tender)
31
<PAGE>
pursuant to the next succeeding paragraph, will bear such higher interest
rate (or such higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders except that the
period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to such Optional Reset Date and except that, if
the Holder has tendered any Security for repayment pursuant to the Reset
Notice, the Holder may, by written notice to the Trustee, revoke such
tender or repayment until the close of business on the tenth day before
such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Optional Extension of Maturity.
The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section
301). The Stated Maturity of any Security of such series may be extended at
the option of the Company for the period or periods specified on the face
of such Security (each an "Extension Period") up to but not beyond the date
(the "Final Maturity") set forth on the face of such Security. The Company
may exercise such option with respect to any Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to the
Stated Maturity of such Security in effect prior to the exercise of such
option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section
106, to the Holder of such Security not later than 40 days prior to the
Original Stated Maturity a notice (the "Extension Notice") indicating (i)
the election of the Company to extend the Maturity, (ii) the new Stated
Maturity, (iii) the interest rate applicable to the Extension Period and
(iv) the provisions, if any, for redemption during such Extension Period.
Upon the Trustee's transmittal of the Extension Notice, the Stated Maturity
of such Security shall be extended automatically and, except as modified by
the Extension Notice and as described in the next paragraph, such Security
will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish
a higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such
32
<PAGE>
higher interest rate to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Company on
the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment
on the Original Stated Maturity once the Company has extended the Maturity
thereof, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders, except that the period for
delivery or notification to the Trustee shall be at least 25 but not more
than 35 days prior to the Original Stated Maturity and except that, if the
Holder has tendered any Security for repayment pursuant to an Extension
Notice, the Holder may, by written notice to the Trustee, revoke such
tender for repayment until the close of business on the tenth day before
the Original Stated Maturity.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 307) any interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 310. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order.
33
<PAGE>
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory
to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at
the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose money in an
amount sufficient to pay and discharge the entire
indebtedness on such
34
<PAGE>
Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest
to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and any premium and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
35
<PAGE>
(2) default in the payment of the principal of or any
premium on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than
a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company or a Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or such Restricted Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or such Restricted Subsidiary under
any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or such Restricted Subsidiary or
of any substantial part of its or such Restricted Subsidiary's
property, or ordering the winding up or liquidation of its or such
Restricted Subsidiary's affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company or a Restricted
Subsidiary, as the case may be, of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it or such Restricted Subsidiary to the entry of a
decree or order for relief in respect of the Company or such
Restricted Subsidiary in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it or such
Restricted Subsidiary, or the filing by it or such Restricted
Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State
law, or the consent by it or such Restricted Subsidiary to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other
36
<PAGE>
similar official of the Company or such Restricted Subsidiary or
of any substantial part of its or such Restricted Subsidiary's
property, or the making by it or such Restricted Subsidiary of an
assignment for the benefit of creditors, or the admission by it or
such Restricted Subsidiary in writing of its or such Restricted
Subsidiary's inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or such
Restricted Subsidiary in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 501(4) or another Event of Default under Section 501(7) which is
common to all Outstanding series of Securities) with respect to Securities
of any series at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare
the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by
the terms thereof) to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall
become immediately due and payable. If an Event of Default specified in
Section 501(4) or another Event of Default under Section 501(7) which is
common to all Outstanding series of Securities occurs and is continuing,
then in every such case, the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by a notice in writing to the Company (and to the
Trustee if given by Holders) may declare the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms thereof) of all the
Securities then Outstanding to be due and payable immediately, and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
37
<PAGE>
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due
otherwise than by such declaration of acceleration and
any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or
rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and any premium and interest and, to the
extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the
38
<PAGE>
rights of the Holders of Securities of such series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the
39
<PAGE>
Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively.
THIRD: To the payment of the remainder, if any, to the
Company or any other Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
40
<PAGE>
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional,
to receive payment of the principal of and any premium and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
41
<PAGE>
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect
to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the court may in its discretion require the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and such court may in its discretion assess reasonable
costs including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, that the provisions of this
Section 514 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder or group of Holders holding in the aggregate
more than 10 per centum in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment
of the principal of or interest on any Security, on
42
<PAGE>
or after the respective due dates expressed in such Security. Neither this
Section 514 nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or such an assessment in any
proceeding instituted by the Company.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series
notice of such default as and to the extent provided by the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
43
<PAGE>
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order, and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
44
<PAGE>
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed to
have a conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
45
<PAGE>
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder
with respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $50,000,000. If any
such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then
for the purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee with
respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed
46
<PAGE>
or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (B) subject to Section 514,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided
in Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the
47
<PAGE>
Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
48
<PAGE>
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any, of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series
issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance
49
<PAGE>
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 106
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
50
<PAGE>
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------,
As Trustee
By_______________________,
As Authenticating Agent
By_______________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than June 15 and December 15
in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities
of each series as of the preceding June 1 or December 1 as the
case may be, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
51
<PAGE>
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided
that any such information, documents or reports required to be filed with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person
to consolidate with or merge into the Company or convey, transfer or lease
its properties and assets substantially as an entirety to the Company,
unless:
52
<PAGE>
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership, trust or other
entity, shall be organized and validly existing under the laws of
the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities
and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as
having been incurred by the Company or such Subsidiary at the time
of such transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to
such transaction have been complied with; provided, however, that
the delivery of an Officers' Certificate or an Opinion of Counsel
is not required with respect to any consolidation, merger,
conveyance, transfer or lease involving the Company and any
wholly-owned subsidiary of the Company.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
53
<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if
such additional Events of Default are to be for the benefit of
less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the
benefit of such series), provided, however, that in respect of any
such additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee
upon such default or may limit the right of the Holders of a
majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to
waive such default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder
of any such Security with respect
54
<PAGE>
such provision or (B) shall become effective only when there is no
such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements
of Section 1008 or otherwise; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to provide for uncertificated securities in addition
to certificated securities; or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
611; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (9) shall not
adversely affect the interests of the Holders of Securities of any
series; or
(11) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Section 401, 1402 and 1403; provided that
any such action shall not adversely affect the interests of the
holders of Securities of such series or any other series of
Securities; or
(12) to evidence the succession of another corporation to
the Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations
of the Company pursuant to Article Eight; or
(13) to comply with the rules or regulations of any
securities exchange on which any of the Securities may be listed;
or
(14) to add to, change or eliminate any of the provisions
of this Indenture as shall be necessary or desirable in accordance
with any amendments to the Trust Indenture Act, provided that such
action does not adversely affect the rights or interests of any
Holder of Securities.
55
<PAGE>
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any instalment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security or any other Security which would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest thereon
is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1009, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1009, or the
deletion of this proviso, in accordance with the requirements of
Sections 611 and 901(9).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
56
<PAGE>
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
57
<PAGE>
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with
the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of
that series, segregate to the extent required by law and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee of its action or failure so to act.
58
<PAGE>
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will provide to a Paying Agent a sum sufficient to
pay the principal of or any premium or interest on any Securities of that
series, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (1) comply
with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent and (2) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust
by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed
for two years after such principal, premium or interest has become due and
payable may be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a newspaper published in the English language, customarily published on
each Business Day and of general circulation in The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
59
<PAGE>
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right
or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Restricted Subsidiary to be
maintained and kept in adequate condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent (i) the Company from discontinuing the operation
or maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not disadvantageous in any
material respect to the Holders or (ii) the Company or any Restricted
Subsidiary from selling or otherwise disposing of properties as it deems
desirable from time to time.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material tax
liabilities, assessments and governmental charges levied or imposed upon
the Company or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (2) all material lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Limitation on Liens.
The Company will not, and it will not permit any Subsidiary to,
create, assume, incur or suffer to exist any Lien upon any stock whether
owned on the date of this Indenture or hereafter acquired of any Restricted
Subsidiary owned by the Company or any Subsidiary to secure any Debt (other
than the Securities) of the Company, any Subsidiary or any Person
60
<PAGE>
without in any such case making effective provision whereby all of the
Outstanding Securities shall be directly secured equally and ratably with
such Debt.
SECTION 1009. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities
of any series, omit in any particular instance to comply with any term,
provision or condition set forth in any covenant provided pursuant to
Section 301(19), 901(2) or 901(7) for the benefit of the Holders of such
series or in any of Section 1008, if the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of
any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any redemption
at the election of the Company of less than all the Securities of any
series (including any such redemption affecting only a single Security),
the Company shall, at least 60 days prior to the Redemption Date fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor
of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
61
<PAGE>
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to
be redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of
any Security of such series, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. If less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of any
such redemption in part, the unredeemed portion of the principal amount of
the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
62
<PAGE>
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the
Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the
particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request,
by the Trustee in the name and at the expense of the Company and shall be
irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the
Redemption
63
<PAGE>
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities is herein referred to as an "optional sinking
fund payment". If provided for by the terms of any Securities, the cash
amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities as provided for by the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a
credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such
64
<PAGE>
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to
any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received
and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 45 days prior to
each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF THE HOLDERS
SECTION 1301. Applicability of Article.
Repayment of securities of any series before their Stated Maturity
at the option of Holders thereof shall be made in accordance with the terms
of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part
at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal
amount thereof, together with interest and/or premium, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
65
<PAGE>
Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the principal (or, if so
provided by the terms of the Securities of any series, a percentage of the
principal) of, the premium, if any, and (except if the Repayment Date shall
be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect
Repayment" form on the reverse of such Security duly completed by the
Holder (or by the Holder's attorney duly authorized in writing), must be
received by the Company at the Place of Payment therefor specified in the
terms of such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such Securities) not
earlier than 45 days nor later than 30 days prior to the Repayment Date. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for
Securities of such series, the premium, if any, to be paid, and the
denomination or denominations of the Security or Securities to be issued to
the Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid, must be specified. The principal
amount of any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof and as
provided in Sections 307(b) and 308, exercise of the repayment option by
the Holder shall be irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable.
If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities,
such Securities or the portions thereof, as the case may be, to be repaid
shall become due and payable and shall be paid by the Company on the
Repayment Date therein specified, and on and after such Repayment Date
(unless the Company shall default in the payment of such Securities on such
Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest. Upon surrender of any such Security for repayment
in accordance with such provisions, the principal amount of such Security
so to be repaid shall be paid by the Company, together with accrued
interest and/or premium, if any, to the Repayment Date; provided, however,
that installments of interest, if any, whose Stated Maturity is on or prior
to the Repayment Date shall be payable (but without interest
66
<PAGE>
thereon, unless the Company shall default in the payment thereof) to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Security which is to be repaid in part only,
the Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Security, without service charge and at the expense of
the Company, a new Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section
1402 or Section 1403 applied to any Securities or any series of Securities,
as the case may be, (unless designated pursuant to Section 301 as not being
defeasible pursuant to such Section 1402 or 1403), in accordance with any
applicable requirements provided pursuant to Section 301 and upon
compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 301 for such Securities.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case
may be, the Company shall be deemed to have been discharged from its
obligations with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall
67
<PAGE>
execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to receive, solely
from the trust fund described in Section 1404 and as more fully set forth
in such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306,
1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option
(if any) to have Section 1403 applied to such Securities.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case
may be, (1) the Company shall be released from its obligations under
Section 801(3), Sections 1006 through 1008, inclusive, and any covenants
provided pursuant to Section 301(19), 901(2) or 901(7) for the benefit of
the Holders of such Securities and (2) the occurrence of any event
specified in Sections 501(4) (with respect to any of Section 801(3),
Sections 1006 through 1008, inclusive, and any such covenants provided
pursuant to Section 301(19), 901(2) or 901(7)), and 501(7) shall be deemed
not to be or result in an Event of Default, in each case with respect to
such Securities as provided in this Section on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that, with respect to such Securities, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so specified in the
case of Section 501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 1402 or Section 1403 to any Securities or any series of Securities,
as the case may be:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 609 and agrees
to comply with the provisions of this Article applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later
than one day before the due date of
68
<PAGE>
any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of
and any premium and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture
and such Securities. As used herein, "U.S. Government Obligation"
means (x) any security which is (i) a direct obligation of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the
option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for
the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the event of an election to have Section 1402
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or (B) since the date of this instrument, there has been a change
in the applicable Federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1403
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income
tax on the same amount, in the same manner and at the same times
as would be the case if such deposit and Covenant Defeasance were
not to occur.
69
<PAGE>
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such Securities
nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such
event specified in Sections 501(5) and (6), at any time on or
prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until
after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act (assuming all Securities are in
default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act unless such trust shall be registered under such Act or exempt
from registration thereunder.
(9) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
SECTION 1405. Acknowledgement of Discharge By Trustee.
Subject to Section 1407 below and after the Company has delivered
to the Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent referred to in Section 1404, as the
case may be, relating to the defeasance or satisfaction and discharge of
this Indenture have been complied with, the Trustee upon request of the
Company shall acknowledge in writing the defeasance or the satisfaction and
discharge, as the case may be, of this Indenture and the discharge of the
Company's obligations under this Indenture.
SECTION 1406. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes
of this Section and Section 1406, the Trustee and any
70
<PAGE>
such other trustee are referred to collectively as the "Trustee") pursuant
to Section 1404 in respect of any Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through
any such Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1404 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1404 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect
the Defeasance or Covenant Defeasance, as the case may be, with respect to
such Securities.
SECTION 1407. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1402 or 1403 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article
with respect to such Securities, until such time as the Trustee or Paying
Agent is permitted to apply all money held in trust pursuant to Section
1405 with respect to such Securities in accordance with this Article;
provided, however, that if the Company makes any payment of principal of or
any premium or interest on any such Security following such reinstatement
of its obligations, the Company shall be subrogated to the rights (if any)
of the Holders of such Securities to receive such payment from the money so
held in trust.
71
<PAGE>
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1501. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer, director or employee, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers, directors, or employees, as
such, of the Company or of any successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director or
employee, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or
implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the
issue of such Securities.
72
<PAGE>
---------------------
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
BURLINGTON NORTHERN SANTA FE
CORPORATION
By /s/ Patrick J. Ottensmeyer
--------------------------
Attest:
/s/ Jeffrey T. Williams
- -----------------------
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Richard Manella
---------------------------------
Attest:
/s/ J. Cahill
- ------------------------
73
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 8 day of Dec., 1995, before me personally came Jeffrey T.
Williams to me known, who being by me duly sworn, did depose and say that
he is Asst. Secretary of BNSF Corp., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Lois M. Melkovitz
-----------------------------
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 5th day of December, 1995, before me personally came R.D.
Manella to me known, who, being by me duly sworn, did depose and say that
he is Vice President of The First National Bank of Chicago, one of the
corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name
thereto by like authority.
/s/ Nilda Sierra
-------------------------
74
Exhibit 5
March 18, 1998
Burlington Northern Santa Fe Corporation
2650 Lou Menk Drive
Fort Worth, Texas 76131
Re: Registration Statement on Form S-3
$500,000,000 Principal Amount of Debt Securities
------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Burlington Northern Santa Fe
Corporation, a Delaware corporation (the "Company"), in connection with an
offering pursuant to Rule 415 under the Securities Act of 1933, as amended
(the "Securities Act"), of $500 million principal amount of the Company's
debt securities (the "Debt Securities") and the corporate proceedings (the
"Corporate Proceedings") taken and to be taken in connection therewith. The
Debt Securities are to be issued under an indenture (the "Indenture"),
between the Company and The First National Bank of Chicago, as trustee. We
have also participated in the preparation and filing with the Securities
and Exchange Commission under the Securities Act of a Registration
Statement on Form S-3 (the "Registration Statement") relating to the Debt
Securities. In this connection, we have examined such corporate and other
records, instruments, certificates and documents as we considered necessary
to enable us to express this opinion.
Based on the foregoing, it is our opinion that, upon
completion of the Corporate Proceedings, the Debt Securities will have been
duly authorized for issuance and, when each series of Debt Securities is
duly executed, authenticated, issued and delivered, such series will
constitute valid and legally binding obligations of the Company entitled to
the benefits of the Indenture, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditor's rights and to general equity principles
(whether considered in a proceeding at law or in equity).
<PAGE>
We consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to us under the caption
"Validity of Securities" therein.
We are admitted to practice law in the State of Illinois
and we express no opinions as to matters under or involving any laws other
than the laws of the State of Illinois, the federal laws of the United
States of America and the General Corporation Law of the State of Delaware.
Very truly yours,
Mayer, Brown & Platt
<TABLE>
<CAPTION>
Exhibit 12
||
Burlington Northern Santa Fe Corporation
Statement of Computation of Ratio of Earnings to Fixed Charges
(In millions, except ratio)
Year Ended December 31,
-----------------------
Earnings: 1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Pre-Tax income $1,404 $1,440 $334 $695 $521
Add:
Interest and fixed
charges, excluding
capitalized interest 344 301 220 155 145
Amortization of
capitalized interest 3 3 1 -- --
Portion of rent
under long-term
operating leases
representative of
an interest factor 183 179 129 98 92
Deduct:
Undistributed
equity in earnings
of investments
accounted for
under the equity
method
(17) (5) ( 27) ( 4) ( 3)
------ ------ -------- ------- -------
Total earnings
available for fixed
charges $1,917 $1,918 $657 $944 $755
====== ======= ======= ======= =======
Fixed Charges:
Interest expense and
fixed charges $362 $314 $227 $157 $145
Portion of rent under
long-term operating
leases representative
of an interest factor 183 179 129 98 92
--- --- --- --- ----
Total Fixed Charges $545 $493 $356 $255 $237
==== ===== ==== ==== ====
Ratio of Earnings to
Fixed Charges 3.52x(1) 3.89x 1.85x (1) 3.70x 3.19x
==== ===== ======= ======= =======
||
(1) Earnings for the years ended December 31, 1997 and 1995, include
special charges of $90 million and $735 million (before tax,
respectively). Excluding these charges, the ratios for 1997 and 1995
would have been 3.68x and 3.91x, respectively.
</TABLE>
Exhibit 13.1
REPORT OF INDEPENDENT ACCOUNTANTS
To the Stockholders and Board of Directors of
Burlington Northern Santa Fe Corporation and Subsidiaries
In connection with our audit of the consolidated financial statements of
Burlington Northern Santa Fe Corporation and Subsidiaries for the year
ended December 31, 1995, which financial statements are included in the
Current Report on Form 8-K (Date of earliest event reported: February 6,
1998) incorporated by reference in the Prospectus constituting part of the
Registration Statement on Form S-3 of Burlington Northern Santa Fe
Corporation, we have also audited the financial statement schedule as of
December 31, 1995 and 1994, listed in Item 14(a)2. of the Burlington
Northern Santa Fe Corporation Annual Report on Form 10-K for the year ended
December 31, 1996.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
COOPERS & LYBRAND L.L.P.
Fort Worth, Texas
February 15, 1996
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 7, 1997, which appears on page 19 of the Annual Report to
Shareholders of Burlington Northern Santa Fe Corporation, which is
incorporated by reference in Burlington Northern Santa Fe Corporation's
Annual Report on 10-K for the year ended December 31, 1996. We also consent
to the incorporation by reference of our report dated February 7, 1997 on the
Financial Statement Schedule as of and for the year ended December 31, 1996,
which appears on page F-1 of such Annual Report on Form 10-K. We also
consent to the incorporation by reference of our report dated February 6, 1998,
related to the consolidated financial statements of Burlington Northern Santa
Fe Corporation as of and for the years ended December 31, 1997 and 1996, which
is included in Burlington Northern Santa Fe Corporation's Current Report on
Form 8-K dated February 6, 1998. We also consent to the reference to us under
the heading "Experts" in such Prospectus.
Price Waterhouse LLP
Chicago, Illinois
March 17, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 of Burlington
Northern Santa Fe Corporation of our report dated February 15, 1996, except
as to the information presented in Note 8 for which the date is February 6,
1998, on our audit of the consolidated financial statements of Burlington
Northern Santa Fe Corporation and Subsidiaries for the year ended December
31, 1995, included in the Burlington Northern Santa Fe Corporation Current
Report on Form 8-K (date of earliest event reported: February 6, 1998). We
also consent to the inclusion in this Prospectus of our report dated
February 15, 1996, on the financial statement schedule of Burlington
Northern Santa Fe Corporation and Subsidiaries as of December 31, 1995 and
1994, listed in Item 14(a)2. of the Burlington Northern Santa Fe
Corporation Annual Report on Form 10-K for the year ended December 31,
1996. We also consent to the reference to our firm under the caption
"Experts" in the aforementioned Registration Statement.
COOPERS & LYBRAND L.L.P.
Fort Worth, Texas
March 17, 1998
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)____
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
Burlington Northern Santa Fe Corporation
(Exact name of obligor as specified in its charter)
Delaware 41-1804964
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
2650 Lou Menk Drive
Fort Worth, Texas 76131-2830
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C., Federal
Deposit Insurance Corporation, Washington, D.C., The
Board of Governors of the Federal Reserve System,
Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b)
of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.
<PAGE>
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and the State of Illinois, on this 17th day of March,
1998.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25.1 to the Registration Statement on
Form S-3 of SunAmerica, Inc., filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 17, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture
between Burlington Northern Santa Fe Corporation and The First National
Bank of Chicago, the undersigned, in accordance with Section 321(b) of the
Trust Indenture Act of 1939, as amended, hereby consents that the reports
of examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities
to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No. 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
Dollar Amounts in C400
Thousands RCFD BIL MIL THOU
------------------------ ---- ------------
ASSETS
<S> <C> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1).. 0081 4,499,157 1.a.
b. Interest-bearing balances(2)........................... 0071 6,967,103 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).. 1773 5,251,713 2.b.
3. Federal funds sold and securities purchased under agreements to
resell 1350 5,561,976 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)..................................................... RCFD 2122 24,171,565 4.a.
b. LESS: Allowance for loan and lease losses.............. RCFD 3123 419,216 4.b.
c. LESS: Allocated transfer risk reserve.................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................... 2125 23,752,349 4.d.
5. Trading assets (from Schedule RD-D)....................... 3545 6,238,805 5.
6. Premises and fixed assets (including capitalized leases).. 2145 717,303 6.
7. Other real estate owned (from Schedule RC-M)..... 2150 7,187 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................ 2130 77,115 8.
9. Customers' liability to this bank on acceptances outstanding 2155 614,921 9.
10. Intangible assets (from Schedule RC-M).................... 2143 277,105 10.
11. Other assets (from Schedule RC-F)......................... 2160 2,147,141 11.
12. Total assets (sum of items 1 through 11).................. 2170 56,108,875 12.
</TABLE>
- ----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
----------------- ------------
LIABILITIES
<S> <C> <C> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................... RCON 2200 21,496,468 13.a
(1) Noninterest-bearing(1).................... RCON 6631 8,918,843 13.a.1
(2) Interest-bearing.......................... RCON 6636 12,577,625 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)... RCFN 2200 14,164,129 13.b.
(1) Noninterest bearing....................... RCFN 6631 352,399 13.b.1
(2) Interest-bearing.......................... RCFN 6636 13,811,730 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3,894,469 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 68,268 15.a
b. Trading Liabilities(from Schedule RC-D)................. RCFD 3548 5,247,232 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less......... RCFD 2332 2,608,057 16.a
b. With a remaining maturity of more than one year through three years A547 379,893 16.b
. c. With a remaining maturity of more than three years ............... A548 323,042 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding RCFD 2920 614,921 18
19. Subordinated notes and debentures (2)............ RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G)........... RCFD 2930 1,222,121 20
21. Total liabilities (sum of items 13 through 20)... RCFD 2948 51,718,600 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.... RCFD 3838 0 23
24. Common stock..................................... RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,989,408 25
26. a. Undivided profits and capital reserves........ RCFD 3632 1,175,518 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities.................................... RCFD 8434 26,750 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (2,259) 27
28. Total equity capital (sum of items 23 through 27) RCFD 3210 4,390,275 28
29. Total liabilities and equity capital (sum of items 21 and 28)...... RCFD 3300 56,108,875 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed
for the bank by independent external Number
N/A
auditors as of any date during 1996 . . . . . . . . . . . . . . . RCFD 6724 M.1
</TABLE>
<PAGE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance
with generally accepted auditing standards by a
certified public accounting firm (may be required by state
chartering authority)
4 = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
