Contract
Exhibit
4.1
FIFTH
SUPPLEMENTAL INDENTURE, dated as of February 11, 2010 (this “Supplemental
Indenture”), by and among Burlington Northern Santa Fe Corporation, a
Delaware corporation (the “Issuer”), R
Acquisition Company, LLC, a Delaware limited liability company (the “Company”), and The
Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New
York Trust Company, N.A.), a national banking association (as successor in
interest to X.X. Xxxxxx Trust Company, National Association, as successor in
interest to Bank One Trust Company, N.A., as successor in interest to The First
National Bank of Chicago), as trustee (the “Trustee”).
RECITALS
WHEREAS,
the Issuer and the Trustee are parties to an indenture, dated as of
December 1, 1995 (as amended and supplemented from time to time, the “Indenture”),
providing for the issuance from time to time of the Issuer’s debentures, notes
or other evidences of indebtedness (the “Securities”), to be
issued in one or more series, as supplemented by the First Supplemental
Indenture, dated as of April 13, 2007, relating to the Company’s issuance
of its 5.65% Debentures due May 1, 2017 and its 6.15% Debentures due
May 1, 2037, as further supplemented by the Second Supplemental Indenture,
dated as of March 14, 2008, relating to the Company’s issuance of its 5.75%
Notes due March 15, 2018, as further supplemented by the Third Supplemental
Indenture, dated as of December 3, 2008, relating to the Company’s issuance
of its 7.00% Notes due February 1, 2014, and as further supplemented by the
Fourth Supplemental Indenture, dated as of September 24, 2009, relating to
the Company’s issuance of its 4.700% Notes due October 1,
2019;
WHEREAS,
pursuant to and in accordance with the Agreement and Plan of Merger, dated as of
November 2, 2009 (the “Merger Agreement”),
by and among the Issuer, Berkshire Hathaway Inc. and the Company, the Issuer
will be merged with and into the Company (the “Merger”) and the
Company will continue as the surviving entity;
WHEREAS,
in connection with the Merger, the Company desires to assume, pursuant to this
Supplemental Indenture, the Issuer’s obligations for the due and punctual
payment of the principal of and any premium and interest on all the Securities
and the performance or observance of each covenant of the Indenture on the part
of the Issuer to be performed or observed;
WHEREAS,
this Supplemental Indenture is being entered into pursuant to and in accordance
with the provisions of Section 801(1) and Section 901(1) of the
Indenture;
WHEREAS,
the Issuer has requested that the Trustee execute and deliver this Supplemental
Indenture; and
WHEREAS,
all conditions precedent to the execution and delivery of this Supplemental
Indenture pursuant to the terms of the Indenture have been
satisfied.
NOW
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
1. Interpretation. Except
where the context otherwise requires, capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the
Indenture. The words “herein,” “hereof” and “hereby” and other words
of similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular section
hereof. Section headings set forth herein are for convenience of
reference only and shall not affect in any way the meaning, interpretation or
construction hereof.
2. Assumption of
Obligations. Upon consummation of the Merger pursuant to the
terms of the Merger Agreement, the Company hereby (i) assumes the Issuer’s
obligations for the due and punctual payment of the principal of and any premium
and interest on all Outstanding Securities issued pursuant to the Indenture and
the performance or observance of each other obligation and covenant set forth in
the Indenture to be performed or observed on the part of the Issuer, and
(ii) succeeds to and is substituted for, and may exercise every right and
power of, the Issuer under the Indenture, and agrees to be bound by the terms
thereof, with the same effect as if the Company had been named as the Issuer in
the Indenture.
3. Release of
Obligations. Upon consummation of the Merger pursuant to the
terms of the Merger Agreement, the Issuer is hereby relieved of all obligations
and covenants under the Indenture and the Securities on the part of the Issuer
to be performed or observed.
4. Ratification of
Indenture. The Indenture, as supplemented and amended hereby,
is hereby ratified and confirmed in all respects, and this Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
5. Trustee Not Responsible for
Recitals. The recitals set forth herein are made by the Issuer
and the Company only and not by the Trustee, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental
Indenture.
6. Governing
Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
7. Severability. In
case any one or more of the provisions contained in this Supplemental Indenture
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Supplemental Indenture, but this Supplemental Indenture
shall be construed as if such invalid or illegal or unenforceable provision had
never been contained herein.
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8. Notices. For
purposes of Section 105(2) of the Indenture, the address for any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by the Indenture to be made upon, given or
furnished to, or filed with, the Company by the Trustee or any Holder shall be
as follows:
0000 Xxx
Xxxx Xxxxx
Xxxx
Xxxxx, Xxxxx 00000-0000
9. Notice of
Merger. The Company shall give the Trustee notice of the
consummation of the Merger, promptly after the consummation thereof pursuant to
the terms of the Merger Agreement, such notice to have attached thereto a copy
of the related Certificate of Merger filed with the Secretary of State of the
State of Delaware.
10. Counterparts. This
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same agreement. Delivery of an executed signature page by
facsimile transmission or other electronic means shall be as effective as
delivery of a manually executed counterpart hereof.
[Signature page
follows]
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IN
WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly
executed as of the date first above written.
| BURLINGTON NORTHERN SANTA FE CORPORATION | |||
|
|
By:
|
/s/ C. Xxxx Xxxxxxx | |
| Name: C. Xxxx Xxxxxxx | |||
| Title: Assistant Vice President - Finance and Treasurer | |||
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| R ACQUISITION COMPANY, LLC | |||
| By: | NATIONAL INDEMNITY COMPANY, its sole member | ||
|
|
By:
|
/s/ Marc. D. Hamburg | |
| Name: Xxxx X. Hamburg | |||
| Title: Chairman | |||
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| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | |
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: Senior Associate | |||
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