<PAGE>
As filed with the Securities and Exchange Commission on May 10, 2000
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 or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
<TABLE>
<S> <C>
2650 Lou Menk Drive Jeffrey R. Moreland
Fort Worth, Texas 76131-2830 2650 Lou Menk Drive
(817) 333-2000 Fort Worth, Texas 76131-2830
(Address, including zip code, and telephone (817) 352-1350
number, including area code, of registrant's (Name, address, including zip code, and
principal executive offices) telephone number, including area code, of
agent for service
</TABLE>
Copies to:
<TABLE>
<S> <C>
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
</TABLE>
_____________________
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.[_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
Proposed
maximum Proposed maximum
Title of each class of Amount to aggregate price aggregate offering Amount of
securities to be registered be registered per unit price (1) registration fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $1,000,000,000 100% $1,000,000,000(2) $264,000
============================================================================================================
</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 $1,000,000,000 or (ii) at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $1,000,000,000.
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>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to completion, dated May 10, 2000
PROSPECTUS
- ----------
Burlington Northern Santa Fe Corporation
$1,000,000,000
Debt Securities
______________
Burlington Northern Santa Fe Corporation ("BNSF") may from time to time
offer debt securities at an aggregate initial offering price not to exceed
$1,000,000,000. BNSF may offer the debt securities as separate series in
amounts, at prices, and on terms to be determined at the time of sale. For each
offering, a prospectus supplement will accompany this prospectus and will
contain all the terms of the series of debt securities for which this prospectus
is being delivered.
BNSF 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 information
regarding the underwriters or agents involved in the sale of the debt securities
for which this prospectus is being delivered. See "Plan of Distribution" for
possible indemnification arrangements for underwriters, agents, and their
controlling persons.
This prospectus may not be used for sales of securities unless it is
accompanied by a prospectus supplement.
_____________________
Neither the Securities and Exchange Commission nor any other regulatory
body has approved or disapproved of these securities or passed upon the accuracy
or adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
_____________________
The date of this prospectus is May _____, 2000.
1
<PAGE>
No dealer, salesperson or other person is authorized to give any information
or to represent anything not contained in this prospectus. You must not rely on
any unauthorized information or representations. This prospectus is an offer to
sell only the debt securities described in this prospectus and any applicable
prospectus supplement, but only under circumstances and in jurisdictions where
it is lawful to do so. The information contained in this prospectus is current
only as of its date.
Currency amounts in this prospectus are stated in United States dollars,
unless indicated otherwise.
BURLINGTON NORTHERN SANTA FE CORPORATION
BNSF is engaged primarily in railroad transportation through its principal
operating subsidiary, The Burlington Northern and Santa Fe Railway Company
("BNSF Railway"). BNSF Railway operates one of the largest railroad networks in
the United States. BNSF Railway's system covers 28 states in the western two-
thirds of the United States and two Canadian provinces. In particular, BNSF
Railway serves all major ports in the western United States, certain Gulf ports
and Mexican and Canadian gateways and important gateways to the eastern United
States.
BNSF Railway derives a substantial portion of its revenues from carload
transportation (including the transportation of chemicals, forest products,
metals and minerals and machinery), intermodal transportation (which means the
transportation of freight containers and truck trailers on flatcars) and the
transportation of coal. Other significant aspects of BNSF Railway's business
include the transportation of agricultural commodities, automobiles and
automobile parts.
BNSF's principal executive offices are located at 2650 Lou Menk Drive,
Fort Worth, Texas 76131-2830, telephone number (817) 333-2000.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth BNSF's ratio of earnings to fixed charges
for the periods shown. The ratio for the year ended December 31, 1995 includes
Santa Fe Pacific Corporation results from September 22, 1995 through December
31, 1995.
<TABLE>
<CAPTION>
Year Ended December 31,
______________________________________
1999 1998 1997(2) 1996 1995(2)
----- ----- -------- ----- --------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges (1) 4.09x 4.17x 3.52x 3.89x 1.85x
</TABLE>
(1) For purposes of this ratio, earnings are calculated by adding fixed charges
(excluding capitalized interest) to pre-tax income or 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 principally related to employee merger and separation costs 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.
2
<PAGE>
USE OF PROCEEDS
Unless specified otherwise in the applicable prospectus supplement, BNSF
will use the net proceeds from the sale of the debt securities for general
corporate purposes, including working capital, capital expenditures, and debt
repayment, and to repurchase its common stock from time to time pursuant to its
share repurchase program.
DESCRIPTION OF DEBT SECURITIES
General
BNSF will issue the debt securities under an Indenture (the "Indenture"),
between BNSF and Bank One Trust Company, National Association, as successor in
interest to The First National Bank of Chicago, as Trustee. A copy of the
Indenture is filed as an exhibit to the registration statement of which this
prospectus is a part. BNSF may issue the debt securities from time to time in
one or more series. The particular terms of each series will be described in a
prospectus supplement and may be different than those described here.
The summaries of certain provisions of the Indenture described below are
not complete and are qualified in their entirety by reference to all the
provisions of the Indenture. If BNSF refers to particular sections or
capitalized defined terms of the Indenture, those sections or defined terms are
incorporated by reference into this prospectus or the prospectus supplement.
BNSF is a holding company that conducts its operations through its
operating subsidiaries. Accordingly, BNSF's ability to pay principal and
interest on the debt securities depends, in part, on its ability to obtain
dividends or loans from its operating subsidiaries, which may be subject to
contractual restrictions. In addition, the rights of BNSF 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 the subsidiary will be subject to the prior claims of the
subsidiary's creditors, except to the extent BNSF itself may be a creditor with
recognized claims against the subsidiary.
The covenants in the Indenture will not necessarily afford the holders of
the debt securities protection in the event of a decline in BNSF's credit
quality resulting from highly leveraged or other transactions involving BNSF.
BNSF may issue separate series of debt securities under the Indenture from
time to time without limitation on the aggregate principal amount. BNSF may
specify a maximum aggregate principal amount for the debt securities of any
series. (Section 301) Except as provided in Section 1008, the debt securities
will be unsecured obligations of BNSF and will rank on a parity with all other
unsecured and unsubordinated indebtedness of BNSF.
The applicable prospectus supplement will describe the following terms of
the debt securities (to the extent applicable):
(1) the price of the debt securities;
(2) the title of the debt securities;
(3) any limit on the aggregate principal amount of the particular series of
debt securities;
(4) the principal payment date or dates;
(5) the interest rate at which the debt securities will bear interest, the
date or dates from which interest will accrue, the interest payment
dates and the associated regular record date for payment of interest;
(6) the place where principal and interest will be paid on the debt
securities;
3
<PAGE>
(7) whether and how debt securities may be redeemed;
(8) whether BNSF is obligated to redeem or purchase debt securities
pursuant to any sinking fund or similar arrangement and if so, the
terms of the arrangement;
(9) the denominations of the debt securities, if other than denominations
of $1,000;
(10) whether the amount of principal or interest on the debt securities may
be determined with reference to an index or pursuant to a formula and
how the amounts will be determined;
(11) any foreign currency in which the principal or interest on the debt
securities may be paid and the manner in which the principal amount
thereof would be translated into the currency of the United States of
America for any purpose, including for the purpose of determining the
principal amount deemed to be outstanding at any time;
(12) any alternate currency in which the principal or interest on the debt
securities is to be payable and the periods and the terms for payment;
(13) how much of the principal amount of the debt securities will be
payable upon declaration of acceleration of the maturity of the debt
securities if more or less than the entire amount;
(14) if the principal amount payable at the stated maturity of the debt
securities will not be known any time before the stated maturity, the
amount deemed to be the principal amount as of that date for any
purpose (or, the manner in which the deemed principal amount is to be
determined), including the principal amount which will be due and
payable upon any maturity other than the stated maturity or which will
be deemed to be outstanding as of that date;
(15) the applicability of the provisions of the Indenture described under
"Defeasance and Covenant Defeasance--Defeasance and Discharge" or
"Defeasance and Covenant Defeasance--Defeasance of Certain Covenants";
(16) whether any debt securities will be issued in the form of one or more
global securities and, if so, the depositaries for the global
securities, the form of any legend to be placed on the global
securities in addition to or instead of the legend referred to under
"Global Securities" and, if different from those described under
"Global Securities", any circumstances under which the global
securities may be exchanged for registered debt securities, and how
any transfer of the global securities may be registered, in the names
of persons other than the depositary for the global securities or its
nominee;
(17) whether the debt securities will be subject to optional interest rate
reset provisions;
(18) whether the debt securities will be subject to optional extensions of
maturity provisions;
(19) any addition to or change in the events of default applicable to the
debt securities and any change in the right of the Trustee or the
holders to declare the principal amount of the debt securities due and
payable;
(20) any addition to or change in the covenants in the Indenture applicable
to the debt securities; and
(21) any other terms of the debt securities. (Section 301)
Debt securities may be sold at a substantial discount below their principal
amount. Any United States income tax considerations applicable to debt
securities that provide for an amount less than the principal amount to be due
and
4
<PAGE>
payable upon acceleration of the maturity of the security (commonly referred
to as original issue discount securities) may be described in the applicable
prospectus supplement. In addition, special United States federal income tax or
other considerations applicable to any debt securities which are denominated in
a foreign currency may be described in the applicable prospectus supplement.
Form, Exchange and Transfer
BNSF will issue the debt securities of each series 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 of
$1,000. (Section 302)
Holders may, at their option, but subject to the terms of the Indenture and
the limitations that apply to global securities, exchange their debt securities
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 that apply to
global securities, holders may exchange debt securities as provided above or
present for registration of transfer at the office of the security registrar or
at the office of any transfer agent designated by BNSF. No service charge
applies for any registration of transfer or exchange of debt securities, but the
holder may have to pay any tax or other governmental charge associated with
registration of transfer or exchange. The transfer or exchange will be made
after the security registrar or the transfer agent is satisfied with the
documents of title and identity of the person making the request. BNSF has
appointed the Trustee as security registrar. Any transfer agent (in addition to
the security registrar) initially designated by BNSF for any debt securities
will be named in the applicable prospectus supplement. (Section 305) BNSF may
at any time designate additional transfer agents or cancel the designation of
any transfer agent or approve a change in the office through which any transfer
agent acts. However, BNSF 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 are to be partially redeemed, BNSF will not be
required to:
. issue or register the transfer of or exchange any debt security during
a period beginning 15 days before the day of mailing of a notice of
redemption and ending on the day of the mailing; or
. register the transfer of or exchange any debt security selected for
redemption, in whole or in part, except the unredeemed portion of any
debt security being redeemed in part. (Section 305)
Global Securities
Any of the debt securities may be represented by one or more global
securities, which will have an aggregate principal amount equal to that of the
debt securities they represent. 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
depositary appointed by BNSF (DTC or such other depositary is referred to in
this prospectus as the "depositary") and registered in the name of the
depositary or its nominee. The global security will bear a legend regarding the
restrictions on exchange and registration of transfer referred to below and any
other matters as may be provided for in the Indenture. Debt securities will not
be issued in definitive form unless the prospectus supplement states otherwise.
No global security may be exchanged for registered debt securities, and no
transfer of a global security may be registered in the name of any person other
than the depositary or its nominee unless:
. the depositary has notified BNSF that it is unwilling or unable to
continue as depositary or has ceased to be qualified to act as
depositary as required by the Indenture;
5
<PAGE>
. an event of default occurs and continues with respect to the debt
securities represented by the global security; or
. there exist any other circumstances described in the applicable
prospectus supplement. All debt securities issued in exchange for a
global security or any portion of a global security will be registered
in the names that the depositary directs. (Sections 204 and 305)
The depositary has advised BNSF as follows: DTC is a limited-purpose trust
company organized under the Banking Law of the State of New York, 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 Securities Exchange Act of 1934. DTC holds
securities that its 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. This eliminates the need for physical
movement of securities certificates. Direct participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations, some of whom (and/or their representatives) own the
depositary. Access to DTC's book-entry system is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a direct participant, either directly or indirectly.
The rules applicable to DTC and its participants are on file with the SEC.
When BNSF issues 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 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 when 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 the securities in definitive form. These
laws may impair the ability to transfer beneficial interests in a global
security.
When the depositary, or its nominee, is the registered owner of the global
security, it will be considered the sole owner or holder of the debt securities
represented by the global security for all purposes under the Indenture. Except
as described above, beneficial owners:
. will not be entitled to have debt securities represented by the 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 of the global security or
any debt securities represented by the global security for any purpose
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.
6
<PAGE>
Neither DTC nor Cede & Co. will consent or vote with respect to debt
securities. Under its usual procedures, DTC mails an omnibus proxy to BNSF 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 any principal of and interest on the debt securities
represented by the global security registered in the name of the depositary or
its nominee will be made by BNSF through the Trustee or a paying agent, which
may also be the Trustee, to the depositary or its nominee as the registered
owner of the global security. Neither BNSF, 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.
BNSF 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 the participant and not of DTC, the
paying agent or BNSF, 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 BNSF or the paying agent, disbursement of those payments to
direct participants shall be the responsibility of DTC and disbursement of the
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 BNSF believes
to be reliable, but BNSF takes no responsibility for the accuracy of this
information.
Payment and Paying Agents
BNSF will pay interest on a debt security on any interest payment date to
the registered holder of the debt security as of the close of business on the
regular record date for payment of interest. (Section 307)
BNSF will pay the principal of and any premium and interest on the debt
securities at the office of the paying agent or paying agents that BNSF
designates. BNSF may pay interest by check mailed to the address of the person
entitled to the payment as the address appears in the security register. BNSF
has designated the corporate trust office of the Trustee in Chicago, Illinois as
BNSF's sole paying agent for payments on the debt securities. Any other paying
agents initially designated by BNSF for the debt securities will be named in the
applicable prospectus supplement. BNSF may at any time designate additional
paying agents, rescind the designation of any paying agent or approve a change
in the office through which any paying agent acts. BNSF must maintain a paying
agent in each place of payment for the debt securities of a particular series.
(Section 1002)
Any money paid by BNSF 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 the principal, premium or interest has become due and
payable may be repaid to BNSF at BNSF's request. (Section 1003)
Negative Pledge
In the Indenture, BNSF 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 of BNSF Railway, whether by
merger or otherwise) to secure any obligation of BNSF, any of its subsidiaries
or other person, unless all of the outstanding debt securities are directly
secured equally and ratably with the obligation. (Section 1008) For purposes of
the Indenture, "lien" means any mortgage, pledge, lien or any other encumbrance.
7
<PAGE>
Consolidation, Merger and Sale of Assets
BNSF may not consolidate or merge with any entity, or convey, transfer or
lease substantially all of its properties and assets to any entity, and may not
permit any entity to convey, transfer or lease substantially all of its
properties and assets to BNSF, unless:
. the successor entity (if any) is a corporation, partnership, trust or
other entity organized and validly existing under the laws of any
domestic jurisdiction and assumes BNSF's obligations on the debt
securities and under the Indenture; and
. 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, would occur and continue. (Section
801)
Events of Default
Each of the following will constitute an event of default under the
Indenture with respect to debt securities:
(1) failure to pay principal of or any premium on any debt security of that
series when due;
(2) failure to pay any interest on any debt securities of that series when
due, continued for 30 days;
(3) failure to deposit any sinking fund payment, when due, in respect of
any debt security of that series;
(4) failure to perform, or breach of, any other covenant or warranty of
BNSF 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 particular series other than that series), continued for 90 days
after written notice has been given to BNSF 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
(5) certain events involving bankruptcy, insolvency or reorganization.
(Section 501)
If an event of default (other than an event of default described in clause
(4) above that applies to all outstanding debt securities) with respect to the
debt securities of any series at the time outstanding occurs and continues,
either the Trustee or the holders of at least 25% of the aggregate principal
amount of the outstanding debt securities of that series may declare the
principal amount of the debt securities of that series to be due and payable
immediately by giving notice as provided in the Indenture. If an event of
default described in the preceding sentence applies to any debt security that is
an original issue discount security or the principal amount of the debt security
is not then determinable, the portion of the principal amount of the debt
security, or other amount in lieu of the principal amount, as may be specified
in the terms of the debt security, may be declared to be due and payable
immediately as provided in the preceding sentence. If an event of default
described in clause (4) above that applies to all outstanding debt securities
occurs and continues, either the Trustee or the holders of at least 25% of the
aggregate principal amount of all the debt securities then outstanding (treated
as one class) may declare the principal amount of all the debt securities then
outstanding to be due and payable immediately by giving notice as provided in
the Indenture. If an event of default described in the preceding sentence
applies to any debt security that is an original issue discount security, the
portion of the principal amount of the debt security as may be specified in the
terms of the debt security may be declared to be due and payable immediately as
provided in the preceding sentence. After the acceleration of a series, but
before a judgment or decree based on acceleration is rendered, the holders of a
majority of the aggregate principal amount of the outstanding debt securities of
that series may, under certain circumstances, rescind and annul the 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."
8
<PAGE>
If an event of default occurs and is continuing, generally the Trustee will
be under no obligation to exercise any of its rights under the Indenture at the
request of any of the holders, unless those holders offer to the Trustee
reasonable indemnity. (Section 603) If the Trustee is offered reasonable
indemnity under the Indenture, the holders of a majority of the 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 under the Indenture, unless:
. the holder has previously given to the Trustee written notice of a
continuing event of default;
. the holders of at least 25% of the aggregate principal amount of the
outstanding debt securities of the relevant series have made written
request, and the holder or holders have offered reasonable indemnity,
to the Trustee to institute the proceeding; and
. the Trustee has failed to institute a proceeding, and has not received
from the holders of a majority of the aggregate principal amount of
the outstanding debt securities of the relevant series a direction
inconsistent with the request, within 60 days after the notice,
request and offer. (Section 507)
However, the 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 any debt security on or after the applicable due date specified in
the debt security. (Section 508)
BNSF will furnish annually a statement to the Trustee by certain of its
officers as to whether or not BNSF, 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 known defaults. (Section 1004)
Modification and Waiver
Modifications and amendments of the Indenture may be made by BNSF and the
Trustee with the consent of the holders of a majority of aggregate principal
amount of the outstanding debt securities of each series affected by the
modification or amendment. No modification or amendment may, without the consent
of the holder of each affected outstanding debt security:
(1) change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
(2) reduce the principal amount of, or any premium or interest on, any
debt security;
(3) reduce the amount of principal of an original issue discount security
or any other debt security payable upon acceleration of maturity;
(4) change the place or currency of payment of principal of, or any
premium or interest on, any debt security;
(5) impair the right to institute suit for the enforcement of any payment
on or with respect to any debt security;
9
<PAGE>
(6) reduce the percentage of the principal amount of outstanding debt
securities of any series that is required to consent to the
modification or amendment of the Indenture;
(7) reduce the percentage of the principal amount of outstanding debt
securities of any series necessary for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults;
or
(8) make certain modifications to the provisions with respect to
modification and waiver. (Section 902)
The holders of a majority of the 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 the affected series. (Sections
513 and 1009)
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:
(1) the principal amount of an original issue discount security that will
be deemed to be outstanding will be the amount of its principal that
would be due and payable at that time if the debt security was
accelerated to that date;
(2) if, as of that 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 the debt security
deemed to be outstanding as of that date will be an amount determined
in the manner prescribed for the debt security; and
(3) 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 that
date in the manner prescribed for the debt security, of the principal
amount of the debt security (or, in the case of a debt security
described in clause (1) or (2) above, of the amount described in that
clause).
Certain debt securities, including those for which 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 of the Indenture, will not be
deemed to be outstanding. (Section 101)
BNSF will generally 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, the action may be taken only by
persons who are holders of outstanding debt securities of that series on the
record date. To be effective, that action must be taken by holders of the
requisite principal amount of the debt securities within a specified period
following the record date. For any particular record date, this period will be
180 days or a shorter period as specified by BNSF (or the Trustee, if it sets
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, will 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 BNSF
may be discharged from all its obligations with respect to the debt securities
(except for certain obligations to exchange or register the transfer of debt
10
<PAGE>
securities, to replace stolen, lost or mutilated debt securities, to maintain
paying agencies and to hold moneys for payment in trust). To be discharged from
those obligations, BNSF must deposit in trust for the benefit of the holders of
the debt securities money or U.S. government obligations, or both, which,
through the payment of principal and interest on the deposited money or U.S.
government obligations, will provide enough money to pay the principal of and
any premium and interest on the debt securities on the stated maturities in
accordance with the terms of the Indenture and the debt securities. BNSF may
only do this if, among other things, BNSF has delivered to the Trustee an
opinion of counsel to the effect that BNSF 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 the debt
securities will not recognize gain or loss for federal income tax purposes as a
result of the 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 the 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, BNSF may omit to comply with certain
restrictive covenants, including those described under "Negative
Pledge" and any that may be described in the applicable prospectus
supplement; and
. in those circumstances, the occurrence of certain events of default,
which are described above in clause (4) (with respect to the
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 with respect to the debt
securities.
BNSF, to exercise this option, will be required to deposit, in trust for the
benefit of the holders of the debt securities, money or U.S. government
obligations, or both, which, through the payment of principal and interest on
the deposited money or U.S. government obligations, will provide enough money to
pay the principal of and any premium and interest on the debt securities on the
stated maturities in accordance with the terms of the Indenture and the debt
securities. BNSF will also be required, among other things, to deliver to the
Trustee an opinion of counsel to the effect that holders of the debt securities
will not recognize gain or loss for federal income tax purposes as a result of
the deposit and defeasance 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
the deposit and defeasance were not to occur. If BNSF exercises this option with
respect to any debt securities and those debt securities are accelerated because
of the occurrence of any event of default, the amount of money and U.S.
government obligations deposited in trust will be sufficient to pay amounts due
on those debt securities at the time of their stated maturities but might not be
sufficient to pay amounts due on those debt securities upon that acceleration.
In that case, BNSF will remain liable for the payments. (Sections 1403 and 1404)
Notices
Notices to holders of debt securities will be given by mail to the
addresses of the holders as they appear in the security register. (Sections 101
and 106)
Title
BNSF, the Trustee and any of their agents may treat the registered holder
of a debt security as the absolute owner of the debt security 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
11
<PAGE>
The Trustee has lending and other customary banking relationships with
BNSF.
PLAN OF DISTRIBUTION
BNSF may sell the debt securities:
. through an underwriter or underwriters;
. through dealers;
. through agents;
. directly to purchasers, including affiliates of BNSF; or
. through a combination of any of these methods of sale.
The applicable prospectus supplement will contain the terms of the offerings of
any debt securities. The initial public offering price and any discount or
concessions allowed or reallowed to dealers may be changed from time to time.
The applicable prospectus supplement will contain the expected time of delivery
of the debt securities for which this prospectus is delivered.
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 will be
obligated to purchase all of the debt securities if any are purchased. In
connection with the sale of debt securities, underwriters may receive
compensation from BNSF 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 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 of 1933. 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 the prevailing
market prices or at negotiated prices. BNSF 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.
BNSF may indemnify the underwriters, agents or dealers who participate in
the distribution of debt securities against certain liabilities, including
liabilities under the Securities Act of 1933. BNSF may also contribute to
payments that the underwriters, dealers or agents or any of their controlling
persons may be required to make in respect of such liabilities. Underwriters,
agents or dealers may be customers of, engage in transactions with or perform
services for BNSF or subsidiaries of BNSF in the ordinary course of business.
If so indicated in a prospectus supplement, BNSF will authorize
underwriters, dealers and agents to solicit offers by certain institutions to
purchase debt securities from BNSF pursuant to delayed delivery contracts
providing for payment and delivery on the date stated in the prospectus
supplement. These contracts will be subject only to those conditions contained
in the prospectus supplement. The prospectus supplement will also contain the
commission payable for solicitation of any of these contracts.
Offers to purchase debt securities may be solicited directly by BNSF and
sales of debt securities may be made by BNSF directly to institutional investors
or others who may be deemed to be underwriters within the meaning of the
Securities Act of 1933 with respect to any resale of the debt securities. The
terms of any such sales will be described in
12
<PAGE>
the prospectus supplement relating to the debt securities. Except as contained
in the applicable prospectus supplement, no director, officer or employee of
BNSF will solicit or receive a commission in connection with direct sales by
BNSF of the debt securities, although these 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 offered by this prospectus will be
passed upon for BNSF by the law firm of Mayer, Brown & Platt, Chicago, Illinois,
and for the underwriters, dealers, or agents, if any, by the law firm of
Sullivan & Cromwell, New York, New York.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to BNSF's Annual Report on Form 10-K for the year ended December 31,
1999, have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
PricewaterhouseCoopers LLP as experts in auditing and accounting.
WHERE YOU MAY FIND MORE INFORMATION
BNSF files annual, quarterly and current reports, proxy statements and
other information with the Securities and Exchange Commission (the "SEC").
BNSF's SEC filings are available to the public over the Internet at the SEC's
web site at http://www.sec.gov. You may also read and copy any document BNSF
files with the SEC at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room, including copying fees.
BNSF has filed a registration statement with the SEC under the Securities
Act of 1933. This prospectus, which is a part of the registration statement,
does not contain all the information contained in the registration statement;
certain items are contained in exhibits to the registration statement, as
permitted by the rules and regulations of the SEC. Statements that BNSF makes in
this prospectus about the content of any contract, agreement or other document
are not necessarily complete. With respect to each contract, agreement or other
document filed as an exhibit to the registration statement, BNSF refers you to
the exhibit for a more complete description of the matter involved, and each
statement that BNSF makes is qualified in its entirety by such reference.
The SEC allows BNSF to "incorporate by reference" the information it files
with them, which means that BNSF can disclose important information to you
simply by referring you to documents which BNSF has filed with the SEC. The
information incorporated by reference is an important part of this prospectus,
and the information that BNSF files later with the SEC will automatically update
and supersede this information. BNSF incorporates by reference all documents
filed by it after the date of the initial registration statement but prior to
the effectiveness of the registration statement, any future filings made with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 until completion of the sale of the debt securities to the public, and
the following documents:
(1) Annual Report on Form 10-K for the year ended December 31, 1999;
(2) Current Report on Form 8-K (Date of earliest event reported: January
20, 2000);
(3) Current Report on Form 8-K (Date of earliest event reported: February
4, 2000); and
(4) Current Report on Form 8-K (Date of earliest event reported: February
17, 2000).
13
<PAGE>
If you would like a copy of any of the documents incorporated by reference
into this prospectus, please make your request in writing or by telephone to:
Burlington Northern Santa Fe Corporation
2650 Lou Menk Drive
Fort Worth, Texas 76131-2830
Attention: Corporate Secretary
Telephone: (817) 352-6856
BNSF will provide you with the copies you request free of charge (other
than the exhibits to the requested documents unless they are specifically
incorporated by reference into the documents).
14
<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:
<TABLE>
<S> <C>
SEC Registration Fee....................................... $264,000
Legal Fees and Expenses.................................... 40,000
Accounting Fees and Expenses............................... 80,000
Rating Agency Fees......................................... 200,000
Trustee's Fees and Expenses................................ 10,000
Printing and Engraving Expenses............................ 15,000
Blue Sky Fees and Expenses................................. 10,000
Miscellaneous.............................................. 7,500
--------
Total.................................................. $626,500
========
</TABLE>
Item 15. Indemnification of Officers and Directors
BNSF 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 BNSF provide that BNSF 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 BNSF, or served or serves as a director, officer, employee, or agent
of another corporation or of a partnership, joint venture, trust or other
II-1
<PAGE>
enterprise, including service with respect to an employee benefit plan, at the
request of BNSF. BNSF has entered into agreements with each of its directors
and officers, pursuant to which BNSF has agreed to indemnify such directors and
officers to the fullest extent permitted by applicable law.
BNSF also maintains directors' and officers' liability insurance which
purports to insure BNSF against certain costs of indemnification which may be
incurred by BNSF pursuant to the foregoing provisions, and to insure directors
and officers of BNSF 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.
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 of debt
securities 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 this 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 this
registration statement.
Notwithstanding the foregoing, any increase or decrease in
the 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 SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in the
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 this
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 this 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 SEC by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this 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
II-2
<PAGE>
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.
(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 SEC 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 May 9, 2000.
BURLINGTON NORTHERN SANTA FE CORPORATION
By: /s/ Robert D. Krebs
--------------------------------------------
Robert D. Krebs
Chairman and Chief Executive Officer
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, 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 therewith. The
term "Authorized Officer" as applied with respect to any action taken pursuant
to this power of attorney means (1) any person who is the Registrant's Chairman
and Chief Executive Officer, President and Chief Operating Officer or Senior
Vice President - Law and Chief of Staff at the time such action shall be taken
and (2) any other officer of the Registrant or a wholly-owned subsidiary of the
Registrant who shall be authorized by any person identified in clause (1) to act
as an Authorized Officer for purposes of this paragraph.
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed below by the following persons in the
capacities indicated on April 20, 2000.
/s/ Robert D. Krebs
- ------------------------------------------------
Robert D. Krebs, Chairman and
Chief Executive Officer (Principal Executive
Officer) and Director
/s/ Thomas N. Hund
- ------------------------------------------------
Thomas N. Hund, Senior Vice President and
Chief Financial Officer (Principal Financial
Officer)
/s/ Dennis R. Johnson
- ------------------------------------------------
Dennis R. Johnson, Vice President and Controller
(Principal Accounting Officer)
/s/ Joseph F. Alibrandi
- ------------------------------------------------
Joseph F. Alibrandi, Director
<PAGE>
/s/ John J. Burns, Jr.
- ---------------------------------------
John J. Burns, Jr., Director
/s/ George Deukmejian
- ---------------------------------------
George Deukmejian, Director
/s/ Bill M. Lindig
- ---------------------------------------
Bill M. Lindig, Director
/s/ Vilma S. Martinez
- ---------------------------------------
Vilma S. Martinez, Director
/s/ Roy S. Roberts
- ---------------------------------------
Roy S. Roberts, Director
/s/ Marc J. Shapiro
- ---------------------------------------
Marc J. Shapiro, Director
/s/ Arnold R. Weber
- ---------------------------------------
Arnold R. Weber, Director
/s/ Robert H. West
- ---------------------------------------
Robert H. West, Director
/s/ J. Steven Whisler
- ---------------------------------------
J. Steven Whisler, Director
/s/ Edward E. Whitacre, Jr.
- ---------------------------------------
Edward E. Whitacre, Jr., Director
/s/ Ronald B. Woodard
- ---------------------------------------
Ronald B. Woodard, Director
/s/ Michael B. Yanney
- ---------------------------------------
Michael B. Yanney, Director
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Document
- ------ --------------------------------------------------
1 Underwriting Agreement, dated as of December 6, 1995,
between BNSF and Goldman, Sachs & Co., J.P. Morgan
Securities Inc., Morgan Stanley & Co. Incorporated and
Salomon Brothers Inc. (incorporated by reference to Exhibit
1 of BNSF's Registration Statement on Form S-3 filed on
February 8, 1999 (Registration No. 333-72013))
4 Indenture, dated as of December 1, 1995, between BNSF and
Bank One Trust Company, National Association, successor to
The First National Bank of Chicago, as Trustee (incorporated
by reference to Exhibit 4 of BNSF's Registration Statement
on Form S-3 filed on February 8, 1999 (Registration No. 333-
72013))
5 Opinion of Mayer, Brown & Platt (filed herewith)
12 Statement of Computation of Ratio of Earnings to Fixed
Charges (filed herewith)
23.1 Consent of Mayer, Brown & Platt (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP (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 Bank One Trust Company,
National Association (filed herewith)
<PAGE>
[LETTERHEAD OF MAYER, BROWN & PLATT]
MAIN TELEPHONE
312-782-0600
MAIN FAX
312-701-7711
EXHIBIT 5
May 9, 2000
Burlington Northern Santa Fe Corporation
2650 Lou Menk Drive
Fort Worth, Texas 76131
Re: Registration Statement on Form S-3
$1,000,000,000 Principal Amount of Debt Securities
Ladies and Gentlemen:
We have acted as counsel to Burlington Northern Santa Fe Corporation, a
Delaware corporation ("BNSF"), in connection with an offering pursuant to Rule
415 under the Securities Act of 1933, as amended (the "Securities Act"), of $1
billion principal amount of BNSF'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 BNSF and Bank One Trust Company, National
Association, as successor in interest to 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 BNSF, 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).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the related prospectus and any
related prospectus supplement under the caption "Legal Matters" with respect to
the matters stated 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,
/s/ Mayer, Brown & Platt
Mayer, Brown & Platt
[LETTERHEAD]
<PAGE>
EXHIBIT 12
Burlington Northern Santa Fe Corporation and Subsidiaries
Computation of Ratio of Earnings to Fixed Charges
(In Millions, Except Ratio Amounts)
(Unaudited)
<TABLE>
<CAPTION>
Year Ended, 1999 1998 1997 1996 1995
- ------------------------------------------------------------------------------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Earnings:
Pre-tax income $1,819 $1,849 $1,404 $1,440 $ 334
Add:
Interest and fixed charges, excluding capitalized interest 387 354 344 301 220
Portion of rent under long-term operating leases representative
of an interest factor 182 202 183 179 129
Amortization of capitalized interest 5 4 3 3 1
Less: Undistributed equity in earnings of investments accounted
for under the equity method 13 18 17 5 27
------ ------ ------ ------ ------
Total earnings available for fixed charges $2,380 $2,391 $1,917 $1,918 $ 657
====== ====== ====== ====== ======
Fixed charges:
Interest and fixed charges $ 400 $ 371 $ 362 $ 314 $ 227
Portion of rent under long-term operating leases representative
of an interest factor 182 202 183 179 129
------ ------ ------ ------ ------
Total fixed charges $ 582 $ 573 $ 545 $ 493 $ 356
====== ====== ====== ====== ======
Ratio of earnings to fixed charges 4.09x 4.17x 3.52x(1) 3.89x 1.85x(1)
====== ====== ====== ====== ======
</TABLE>
(1) Earnings for the years ended December 31, 1997 and 1995, include
special charges principally related to employee merger and separation
costs of $90 million and $735 million (before-tax, respectively).
Excluding these charges, the ratio for the years ended December 31,
1997 and 1995 would have been 3.68x and 3.91x, respectively.
<PAGE>
EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 4, 2000 relating to the
consolidated financial statements, which appears in the 1999 Annual Report to
Shareholders which is incorporated by reference in Burlington Northern Santa Fe
Corporation's Annual Report on Form 10-K for the year ended December 31, 1999.
We also consent to the incorporation by reference of our report dated February
4, 2000 relating to the financial statement schedule, which appears in such
Annual Report on Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Fort Worth, Texas
May 10, 2000
<PAGE>
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)
____________________________
Bank One Trust Company, National Association
(Exact name of trustee as specified in its charter)
A National Banking Association 31-0838515
(I.R.S. employer
identification number)
100 East Broad Street, Columbus, Ohio 43271-0181
(Address of principal executive offices) (Zip Code)
Bank One Trust Company, N.A.
One North State Street, 9th Floor
Chicago, Illinois 60602
Attn: Sandra L. Caruba, Vice President and Senior Counsel, (312) 336-9436
(Name, address and telephone number of agent for service)
_____________________________
BURLINGTON NORTHERN SANTE 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 76131-2830
Fort Worth, Texas (ZIP Code)
(Address of principal executive offices)
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 certificate 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.
<PAGE>
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.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, 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 State of Illinois, on the 15th day of March,
2000.
Bank One Trust Company, National Association,
Trustee
By /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
of
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
<PAGE>
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect
<PAGE>
of a class or series of stock if approved by a majority of the votes entitled to
be cast by the class or series to be issued unless there are no outstanding
shares of the class or series to be issued. Unless otherwise provided by the
Board of Directors, the record date for determining shareholders entitled to a
share dividend shall be the date the Board of Directors authorizes the share
dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
<PAGE>
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the
power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association
<PAGE>
as part of his regularly assigned duties may be indemnified by the Association
in accordance with the provisions of this Article against all liability
(including, without limitation, judgments, fines, penalties, and settlements)
and all reasonable expenses (including, without limitation, attorneys' fees and
investigative expenses) that may be incurred or paid by him in connection with
any claim, action, suit or proceeding, whether civil, criminal or administrative
(all referred to hereafter in this Article as "Claims") or in connection with
any appeal relating thereto in which he may become involved as a party or
otherwise or with which he may be threatened by reason of his being or having
been a Director, officer or employee of the Association or such other
corporation, or by reason of any action taken or omitted by him in his capacity
as such Director, officer or employee, whether or not he continues to be such at
the time such liability or expenses are incurred; provided that nothing
contained in this Article shall be construed to permit indemnification of any
such person who is adjudged guilty of, or liable for, willful misconduct, gross
neglect of duty or criminal acts, unless, at the time such indemnification is
sought, such indemnification in such instance is permissible under applicable
law and regulations, including published rulings of the Comptroller of the
Currency or other appropriate supervisory or regulatory authority; and provided
further that there shall be no indemnification of Directors, officers, or
employees against expenses, penalties, or other payments incurred in an
administrative proceeding or action instituted by an appropriate regulatory
agency which proceeding or action results in a final order assessing civil money
penalties or requiring affirmative action by an individual or individuals in the
form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be
<PAGE>
conclusively presumed to be doing so in reliance upon the right of
indemnification provided for in this Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
---------------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY-LAWS
-------
ARTICLE I
MEETINGS OF SHAREHOLDERS
------------------------
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the Directors-
elect of their election and to meet forthwith for the organization of the new
Board of Directors. The minutes of the meeting shall be signed by the presiding
officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many
as three shareholders to be judges of the election, who shall hold and conduct
the same, and who shall, after the election has been held, notify, in writing
over their signatures, the secretary of
<PAGE>
the meeting of shareholders of the result thereof and the names of the Directors
elected; provided, however, that upon failure for any reason of any judge or
judges of election, so appointed by the Directors, to serve, the presiding
officer of the meeting shall appoint other shareholders or their proxies to fill
the vacancies. The judges of election, at the request of the chairman of the
meeting, shall act as tellers of any other vote by ballot taken at such meeting,
and shall notify, in writing over their signature, the secretary of the Board of
Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
---------
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall
adjourn the meeting to a time not later than the date fixed by the By-Laws for
the next succeeding regular meeting of the Board. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
<PAGE>
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive Officer,
or President, or at the request of two or more Directors. Any special meeting
may be held at such place and at such time as may be fixed in the call. Written
or oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall
receive such fees for attendance at Board and Board committee meetings and such
fees for service as a Director, irrespective of meeting attendance, as from time
to time are fixed by resolution of the Board; provided, however, that payment
hereunder shall not be made to a Director for meetings attended and/or Board
service which are not for the Bank's sole benefit and which are concurrent and
duplicative with meetings attended or Board service for an affiliate of the Bank
for which the Director receives payment; and provided further that fees
hereunder shall not be paid in the case of any Director in the regular
employment of the Bank or of one of its affiliates. Each member of the Board of
Directors, whether or not such Director is in the regular employment of the Bank
or of one of its affiliates, shall be reimbursed for travel expenses incident to
attendance at Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
<PAGE>
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
----------------------------------------
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
<PAGE>
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a
Managing Director, such officer as is designated by the Senior Managing Director
or the Managing Director shall be vested with all the powers and perform all the
duties of the Senior Managing Director or the Managing Director as defined by
these By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and
Trust Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In carrying out the policies of the Bank, each Investment
Management and Trust Committee is hereby authorized to establish management
teams whose duties and responsibilities shall be specifically set forth in the
policies of the Bank. Each such management team shall report such proceedings
and the actions taken thereby to the Investment Management and Trust Committee.
Each Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise
<PAGE>
all claims of every kind and description in favor of or against the Bank, and to
give receipts, releases and discharges therefor; to borrow money and in
connection therewith to make, execute and deliver notes, bonds or other
evidences of indebtedness; to pledge or hypothecate any securities or any
stocks, bonds, notes or any property real or personal held or owned by the Bank,
or to rediscount any notes or other obligations held or owned by the Bank,
whenever in his or her judgment it is reasonably necessary for the operation of
the Bank; and in furtherance of and in addition to the powers hereinabove set
forth to do all such acts and to take all such proceedings as in his or her
judgment are necessary and incidental to the operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management
staff or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank. Any
member of the Bank's management staff or any employee of the Bank designated as
an officer on the Bank's payroll system is hereby authorized for and on behalf
of the Bank to execute any indemnity and fidelity bonds, trust agreements,
proxies or other papers or documents of like or different character necessary,
desirable or incidental to the appointment of the Bank in any fiduciary
capacity, the conduct of its business in any fiduciary capacity, or the conduct
of its other banking business; to sign and issue checks, drafts, orders for the
payment of money and certificates of deposit; to sign and endorse bills of
exchange, to sign and countersign foreign and domestic letters of credit, to
receive and receipt for payments of principal, interest, dividends, rents, fees
and payments of every kind and description paid to the Bank, to sign receipts
for money or other property acquired by or entrusted to the Bank, to guarantee
the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for
<PAGE>
investment of fiduciary customers or in which non-fiduciary customers may direct
investment by the Bank.
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall
be bonded for the honest and faithful performance of their duties for such
amount as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
-----------------------------
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
<PAGE>
ARTICLE V
MISCELLANEOUS PROVISIONS
------------------------
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of the
Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 15, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between Burlington Northern
Sante Fe Corporation and Bank One Trust Company, National Association, as
Trustee, 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,
Bank One Trust Company, National Association
By: /s/ Sandra L. Caruba
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
Legal Title of Bank: Bank One Trust Company, NA Call Date: 12/31/98
Address: 100 Broad Street ST-BK: 17-1630 FFIEC 032
City, State Zip: Columbus, OH 43271 Page RC-1
FDIC Certificate No.: 0/3/6/1/8
---------
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C300
------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RCON
RC-A): ----
a. Noninterest-bearing balances and currency and coin(1).............. 0081 159,911 1.a
b. Interest-bearing balances(2)....................................... 0071 16,874 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 7,403 2.b
3. Federal funds sold and securities purchased under agreements to resell 1350 576,473 3.
4. Loans and lease financing receivables: RCON
a. Loans and leases, net of unearned income (from Schedule ----
RC-C).............................................................. 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses.......................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve.............................. 3128 0 4.c
RCON
d. Loans and leases, net of unearned income, allowance, and ----
reserve (item 4.a minus 4.b and 4.c)............................... 2125 32,593 4.d
5. Trading assets (from Schedule RD-D)................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases).............. 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M).......................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)........................................ 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding.......... 2155 0 9.
10. Intangible assets (from Schedule RC-M)................................ 2143 31,392 10.
11. Other assets (from Schedule RC-F)..................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11).............................. 2170 970,653 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98
Address: 100 East Broad Street ST-BK: 171630 FFIEC 032
City, State Zip: Columbus, OH 43271 Page RC-2
FDIC Certificate No.: 0/3/6/1/8
---------
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
-----------------
<S> <C> <C> <C>
LIABILITIES RCON
13. Deposits: ----
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).............................. 2200 802,791 13.a
(1) Noninterest-bearing(1)............................... 6631 727,720 13.a1
(2) Interest-bearing..................................... 6636 75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II).......................
(1) Noninterest bearing..................................
(2) Interest-bearing.....................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury................. RCON 2840 0 15.a
b. Trading Liabilities (from Schedule RC-D)................. RCFD 3548 0 15.b
RCON
16. Other borrowed money: ----
a. With original maturity of one year or less............... 2332 0 16.a
b. With original maturity of more than one year............. A547 0 16.b
c. With original maturity of more than three years ......... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding..... 2920 0 18.
19. Subordinated notes and debentures........................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)...................... 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20).............. 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............... 3838 0 23.
24. Common stock................................................ 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock).... 3839 35,157 25.
26. a. Undivided profits and capital reserves................... 3632 67,207 26.a
b. Net unrealized holding gains (losses) on
available-for-sale securities............................ 8434 56 26.b
27. Cumulative foreign currency translation adjustments......... 3284 0 27.
28. Total equity capital (sum of items 23 through 27)........... 3210 103,220 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)....................... 3300 970,653 29.
</TABLE>
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 auditors as [___]
of any date during 1996.
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.
