11/18/95
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement ("Supplemental Agreement") is entered into
this 18 day of November, 1995, between Union Pacific Corporation, Union Pacific
Railroad Company, Missouri Pacific Railroad Company (collectively referred to as
"UP"), and Southern Pacific Rail Corporation, Southern Pacific Transportation
Company, The Denver & Rio Grande Western Railroad Company, St. Louis
Southwestern Railway Company and SPCSL Corp. (collectively referred to as "SP",
with both UP and SP also hereinafter referred to collectively as "UP/SP"), on
the one hand, and Burlington Northern Railroad Company ("BN") and The Xxxxxxxx,
Topeka and Santa Fe Railway Company ("Santa Fe"), hereinafter collectively
referred to as "BNSF", on the other hand, concerning the proposed acquisition of
Southern Pacific Rail Corporation by UP Acquisition Corporation, and the
resulting common control of UP and SP pursuant to the application pending before
the Interstate Commerce Commission ("ICC") in Finance Docket No. 32760, Union
Pacific Corporation, Union Pacific Railroad Company, and Missouri Pacific
Railroad Company -- Control and Merger -- Southern Pacific Rail Corporation,
Southern Pacific Transportation Company, St. Louis Southwestern Railway Company,
SPCSL Corp., and The Denver and Rio Grande Western Railroad Company.
Pursuant to an Agreement between UP/SP and BNSF dated September 25, 1995
(the "Agreement"), UP/SP and BNSF agreed to various trackage rights, line sales,
and other related transactions.
In order to (a) realize the intent of the parties that the Agreement
result in the preservation of service by two competing railroad companies for
all 2-to-1 customers as described in Section 8i of the Agreement and (b) correct
various errata to the Agreement that have been identified since it was signed,
the parties agree to amend the Agreement as follows:
1. Amendment to Section 1.
a) Section 1b is amended by (i) inserting the phrase "with the Utah
Central Railway Company at Ogden" between the phrases "Provo;" and "and with the
Salt" in the second to last line, and (ii) adding at its conclusion the
following language:
"BNSF shall also receive the right to utilize in common with
UP/SP, for normal and customary charges, SP's soda ash transload
facilities in Ogden and Salt Lake City. BNSF shall also have the
right to access any shipper-owned soda ash transload facilities in
Ogden and Salt Lake City and to establish its own soda ash
transload facilities along the trackage rights granted under this
section."
b) Section 1d is amended by adding at its conclusion the following
language:
"BNSF shall have the right, upon 180 days prior written notice to
UP/SP, to change its election; provided, however, that BNSF shall
(x) not change its election more often than once every five years
and (y) shall reimburse UP/SP for any costs incurred by UP/SP in
connection with such changed election."
c) Section 1g is amended by (i) revising the third and fourth sentences
to read as follows:
"Manifest trains shall be carload business and shall be equipped
with adequate motive power to achieve the same horsepower per
trailing ton as comparable UP/SP trains. Helpers shall not be used
unless comparable UP/SP manifest trains use helpers in which case
BNSF trains may be operated in the same fashion provided that
BNSF furnishes the necessary helper service."
and (ii) by deleting the comma in the last sentence after the word "helpers."
d) Section 1i is amended by inserting the term "BNSF" between the words
"provide" and "non-discriminatory" in the second line.
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2. Amendment to Section 3. Section 3 is amended by adding a new Section 3f to
the Agreement. New Section 3f shall read as follows:
"f) Forty-five (45) days before initiating service to a customer
pursuant to Sections 3a and 3b, BNSF must elect whether its
service shall be (i) direct, (ii) through reciprocal switch, or
(iii) with UP/SP's prior agreement, using a third party
contractor to perform switching for itself or both railroads.
BNSF shall have the right, upon 180 days prior written notice
to UP/SP, to change its election; provided, however, that BNSF
shall (x) not change its election more often than once every
five years and (y) shall reimburse UP/SP for any costs incurred
by UP/SP in connection with such changed election."
3. Amendment to Section 4.
a) Section 4a is amended by adding the phrase "(with parity and equal
access to the Mexican border crossing at Brownsville)" at the conclusion of
the second sub-paragraph which reads "UP's line between Houston (Algoa) and
Brownsville."
b) Section 4b is amended by adding at its conclusion the phrase "and
Eagle Pass."
c) Section 4d is amended by adding at its conclusion the following
language:
"BNSF shall have the right, upon 180 days prior written notice
to UP/SP, to change its election; provided, however, that BNSF
shall (x) not change its election more often than once every five
years and (y) shall reimburse UP/SP for any costs incurred by UP/SP
in connection with such changed election."
d) The first sentence of Section 4f is amended by inserting a comma
between the phrase "(including FNM interchange)" and the term "UP/SP."
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4. Amendment to Section 5.
a) Section 5a is amended as follows in order to add an additional grant
of trackage rights:
"a) UP/SP shall grant to BNSF trackage rights on the following lines:
o SP's line between Houston, Texas and Iowa Junction in
Louisiana;
o SP's line between Dayton, Texas and Baytown, Texas;
o UP's and SP's lines near Avondale (SP MP 16.9) and West Bridge
Junction (SP MP 10.5); and
o UP's line between West Bridge Junction (UP MP 10.2) and UP's
Westwego, Louisiana intermodal facility (approximately UP MP
9.2)."
b) Section 5b is amended by adding at its conclusion the following
sentence:
"BNSF shall also have the right to interchange with and have access
over the New Orleans Public Belt Railroad at West Bridge Junction."
c) The last sentence in Section 5c is amended by inserting a period
after the word "limitations" and by beginning a new sentence immediately
thereafter with the word "where."
d) Section 5d is amended by adding at its conclusion the following
language:
"BNSF shall have the right, upon 180 days prior written notice to
UP/SP, to change its election; provided, however, that BNSF shall
(x) not change its election more often than once every five years
and (y) shall reimburse UP/SP for any costs incurred by UP/SP in
connection with such changed election."
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5. Amendment to Section 6.
a) Section 6c is amended by adding at its conclusion the following
language: "and the Little Rock Port Authority at Little Rock."
b) Section 6e is amended by adding at its conclusion the following
language:
"BNSF shall have the right, upon 180 days prior written notice to
UP/SP, to change its election; provided, however, that BNSF shall
(x) not change its election more often than once every five years
and (y) shall reimburse UP/SP for any costs incurred by UP/SP in
connection with such changed election."
6. Amendment to Section 8.
a) The parenthetical clause in Section 8d is amended to read as follows:
"(i.e., the southwest quadrant connection at Xxxxxxxx including the
track between BN MP 10.43 and MP 11.14.)"
b) The second line in Section 8h is amended by substituting "UP/SP" for
"SP" in the two places "SP" appears in that line.
c) Section 8i is amended in its entirety to read as follows:
"i) It is the intent of the parties that this Agreement result in
the preservation of service by two competing railroad companies
for all customers listed on Exhibit A to this Agreement
presently served by both UP and SP and no other railroad
(2-to-1 customers).
The parties recognize that some 2-to-1 customers will not be
able to avail themselves of BNSF service by virtue of the
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trackage rights and line sales contemplated by this Agreement.
For example, 2-to-1 customers located at points between Niles
Junction and the end of the joint track near Midway (including
Livermore, CA, Pleasanton, CA, Radum, CA, and Trevarno, CA),
Turlock, CA, South Gate, CA, Tyler, TX, Defense, TX, College
Station, TX, Great Southwest, TX, Victoria, TX, Sugar Land, TX,
points on the former Galveston, Houston & Xxxxxxxxx Railroad
served only by UP and SP, Opelousas, LA, Paragould, AR, Dexter,
MO, and Herington, KS, are not accessible under the trackage
rights and line sales covered by this Agreement. Accordingly,
UP/SP and BNSF agree to enter into arrangements under which,
through trackage rights, haulage, ratemaking authority or other
mutually acceptable means, BNSF will be able to provide
competitive service to 2-to-1 customers at the foregoing points
and to any 2-to-1 customers who are not located at points
expressly referred to in this Agreement or Exhibit A to this
Agreement.
BNSF shall have the right to interchange with any short-line
railroad which, prior to the date of this Agreement could
interchange with both UP and SP and no other railroad."
d) Section 8j, is modified by adding the word "or" between the words
"route" and "routes."
7. Amendment to Section 9.
a) The third sentence of Section 9d is amended by deleting the phrase
"UP/SP traffic" and inserting the phrase in place thereof "traffic of the
owning carrier."
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b) Section 9h is amended in its entirety to read as follows:
"h) The rates for reciprocal switching services provided by UP/SP
to BNSF pursuant to the terms of the Agreement shall fully
reimburse UP/SP for its costs plus a reasonable return."
c) Section 9l is amended in its entirety to read as follows:
"l) BNSF shall have the right to connect, for movement in all
directions, with its present lines (including existing trackage
rights) at points where its present lines (including existing
trackage rights) intersect with lines it will purchase or be
granted trackage rights over pursuant to this Agreement. UP/SP
shall have the right to connect, for movement in any direction,
with its present lines (including trackage rights) at points
where its present lines (including trackage rights) intersect
with lines it will be granted trackage rights over pursuant to
this Agreement."
8. Deletion of Section 18. Section 18 of the Agreement captioned
"Confidentiality" is hereby deleted.
9. Amendment of Exhibit A.
a) In the section captioned "Points Referred to in Section 1b" make the
following deletions and insertions: (i) insert before "Points between Oakland,
CA and San Jose, CA: the following points: "Herlong, CA; Xxxxxxx Industrial Park
at Sacramento, CA; Farmers Rice at West Sacramento, CA; Port of Sacramento, CA;"
(ii) add the following language after "Points between Oakland, CA and San Jose,
CA": "(including Warm Springs CA, Fremont CA, Elmhurst CA, Xxxxx CA, Xxxxxx CA,
and Melrose CA) and (iii) delete "Points in the Livermore, CA area (including
Pleasanton, CA, Radum, CA, and Trevarno, CA); West Sacramento, CA; Melrose Drill
Track near Oakland, CA".
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b) Delete the reference to "Victoria, TX" in the section captioned
"Points Referred to in Section 4b." Add "Sinton, TX" in place thereof.
c) Add the phrase "(Amoco, Exxon and Chevron plants)" after the
reference to Mont Belvieu, TX in the section captioned "Points Referred to in
Section 5b." Add the points "Eldon, TX (Bayer plant)" and "Harbor, LA" at the
end of this section.
d) Delete the reference to "Paragould, AR" in the section captioned
"Points Referred to in Section 6c." Add "Forrest City, AR" in place thereof.
For ease of reference, a revised Exhibit A incorporating the
foregoing changes is attached.
10. Amendment to Exhibit B. The third sentence in the last section (captioned
"Third Party Consultant") of Exhibit B shall modified by amending the phrase
"share in any" to "share any."
This Supplemental Agreement makes no other changes to the Agreement and the
Agreement's terms shall remain in full force and effect except as modified
above.
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IN WITNESS WHEREOF, the parties have caused this Supplemental Agreement to
be fully executed as of the date first above written.
UNION PACIFIC CORPORATION UNION PACIFIC RAILROAD
COMPANY
By: /s/ X.X. Xxxxxxxx By: /s/ X.X. Xxxxxxxx
Title: ___________________ Title: ___________________
SOUTHERN PACIFIC RAIL
CORPORATION
By: /s/ Xxxx X. Xxxx
Title: ___________________
MISSOURI PACIFIC SOUTHERN PACIFIC
RAILROAD COMPANY TRANSPORTATION COMPANY
By: /s/ X.X. Xxxxxxxx By: /s/ Xxxx X. Xxxx
Title: ___________________ Title: ___________________
THE DENVER & RIO GRANDE SPCSL CORP.
WESTERN RAILROAD COMPANY
By: /s/ Xxxx X. Xxxx By: /s/ Xxxx X. Xxxx
Title: ___________________ Title: ___________________
ST. LOUIS SOUTHWESTERN
RAILWAY COMPANY
By: /s/ Xxxx X. Xxxx
Title: ___________________
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BURLINGTON NORTHERN THE XXXXXXXX, TOPEKA AND
RAILROAD COMPANY SANTA FE RAILWAY COMPANY
By: /s/ Xxxx X. Ice By: /s/ Xxxx X. Ice
Title: VP Title: ___________________
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EXHIBIT A
Points Referred to in Section 1b
Provo UT
Salt Lake City UT
Ogden UT
Ironton UT
Gatex UT
Pioneer UT
Garfield/Smelter/Magna UT (access to Kennecott private railway)
Geneva UT
Clearfield UT
Xxxxx Cross UT
Relico UT
Xxxxx UT
Little Mountain UT
Xxxxx Industrial Park UT
Points on paired track from Weso NV to Alazon NV
Reno NV (intermodal and automotive only --
BNSF must establish its own automotive facility)
Herlong CA
Xxxxxxx Industrial Park at Sacramento CA
West Sacramento CA (Farmers Rice)
Port of Sacramento CA
Points between Oakland CA and San Jose CA (including Warm Springs CA,
Fremont CA, Elmhurst CA, Xxxxx CA, Xxxxxx CA, and Melrose CA)
San Jose CA
Points Referred to in Section 0x
Xxxxxxx XX
Xx Xxxxx XX
Xxxxxxxxx XX
Points Referred to in Section 4b
Brownsville TX
Port of Brownsville TX
Port of Corpus Christi
Harlingen TX
Corpus Christi TX
Sinton, TX
San Antonio TX
Halsted TX (LCRA plant)
Waco TX
Points on Sierra Xxxxxx-El Paso line
Points Referred to in Section 5b
Baytown TX
Xxxxxx TX
Orange TX
Mont Belvieu TX (Amoco, Exxon, Chevron plants)
Xxxxx, TX (Bayer plant)
Harbor, LA
Points Referred to in Section 6c
Camden AR
Pine Bluff AR
Fair Oaks AR
Xxxxxxx AR
Little Rock AR
North Little Rock AR
East Little Rock AR
Forrest City, AR
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