Exhibit 0
Xxxxxxxxxx Xxxxxxxx Xxxxx Xx Corporation
Debt Securities
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Underwriting Agreement
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December 6, 1995
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
As representatives of the several
underwriters listed in Schedule I
to the applicable Pricing Agreement
Dear Sirs:
From time to time Burlington Northern Santa Fe Corporation, a
Delaware corporation (the "Company"), proposes to enter into one or more
Pricing Agreements in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms
and conditions stated herein and therein, to issue and sell to the firms
named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto
and in or pursuant to the indenture (the "Indenture") identified in such
Pricing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Company to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal
amount of such
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Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities,
the names of the Representatives of such Underwriters and the principal
amount of such Designated Securities to be purchased by each Underwriter
and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the
registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement in respect of the Securities
has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated
by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been
declared effective by the Commission in such form; no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; and no stop order
suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Securities Act of 1933, as amended (the
"Act"), or any preliminary prospectus supplement used in
connection with a particular offering of Securities, being
hereinafter called a "Preliminary Prospectus"; the various parts
of such registration statement, including all exhibits thereto and
the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of
the registration statement became effective but excluding Form
T-1, each as amended at the time such part of the registration
statement becomes effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the
Securities (but excluding any supplement thereto relating to
Designated Securities), in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or
before the date of this Agreement or the Pricing Agreement (if
this Agreement and the Pricing Agreement are not signed at the
same time), being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to the applicable form under the
Act, to the extent filed on or before the date of such reference;
any reference to any
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amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer
to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for
use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
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(d) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, which is material to the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Registration Statement and
the Prospectus, there has not been any change in the capital stock
(other than increases in the stock of the Company as the result of
the issuance of shares pursuant to any of the Company's stock
option plans) or any material change in long-term debt of the
Company and its subsidiaries or any material adverse change, or
any development that the Company has a reasonable cause to believe
involves a prospective material adverse change, in the business,
financial position, shareholders' equity or results of operations
of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership
or leasing of its property requires such qualification, except
where failure to qualify would not in the aggregate have a
material adverse effect upon the Company and its subsidiaries
taken as a whole; and each of Burlington Northern Inc., Burlington
Northern Railroad Company, Santa Fe Pacific Corporation and The
Xxxxxxxx, Topeka and Santa Fe Railway Company (each hereinafter
referred to as a "Significant Subsidiary" or collectively as the
"Significant Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation;
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(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable; and all of the issued
shares of capital stock of each Significant Subsidiary of the
Company have been duly and validly authorized and issued, are
fully paid and non-assessable and except as set forth in the
Prospectus are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(h) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such
Designated Securities, such Designated Securities will have been
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement; assuming the due authorization and execution by the
Trustee, the Indenture has been duly authorized and duly qualified
under the Trust Indenture Act and, at the Time of Delivery for
such Designated Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture
conforms and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(i) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, this Agreement and any Pricing
Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject except
for such conflicts, breaches, violations or defaults that will not
individually or in the aggregate have a material adverse effect on
the business, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties
except for such violations (other than with respect to the
Company's Certificate of Incorporation or By-laws) that will not
individually or in the aggregate have a material adverse effect on
the business, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and
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sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will have
been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which the
Company has reasonable cause to believe will individually or in
the aggregate have a material adverse effect on the financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
and
(k) Price Waterhouse LLP and Coopers & Xxxxxxx L.L.P.,
who have certified certain financial statements of the Company and
its subsidiaries, are independent public accountants as required
by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to
the extent practicable, and in such authorized denominations and registered
in such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by certified or official bank check or checks or such funds as may
be designated in the Pricing Agreement, payable to the order of the Company
in the funds specified in such Pricing Agreement, all at the place and time
and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for
such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented
in relation to the applicable Designated Securities in a form
approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day
following the execution and delivery of the
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Pricing Agreement relating to the applicable Designated Securities
or, if applicable, such earlier time as may be required by Rule
424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities
without giving you advance notice thereof and an opportunity to
comment thereon; to advise the Representatives promptly of any
such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant
to Section 13(a), required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such
Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time take such action as the
Representatives may reasonably request to qualify such Securities
for offering and sale under the securities laws of such
jurisdictions in the United States as the Representatives may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of
such Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the date of the Prospectus as
amended or supplemented in connection with the offering or sale of
the Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the
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Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance and
in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Securities at any time nine
months or more after the date of the Prospectus as amended or
supplemented, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earning statement of the Company and
its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule
158); and
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to
and including the Time of Delivery for such Designated Securities,
not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to
such Designated Securities, without the prior written consent of
the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing
or reproducing this Agreement, any Pricing Agreement, any Indenture, and
the Blue Sky Memorandum and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof,
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky survey; (iv) any fees charged by securities rating services
for rating the Securities; (v) the cost of preparing the Securities; (vi)
the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities (to the extent the Trustee does not pay such
fees); and (vii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise
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specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated
Securities shall be subject, in the discretion of the Representatives, to
the condition that all representations and warranties and other statements
of the Company in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of
Delivery for such Designated Securities, true and correct in all material
respects, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Securities shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(c) hereof; no stop
order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters,
using reasonable efforts, shall have furnished to the
Representatives such opinion or opinions, dated the Time of
Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Securities being
delivered at such Time of Delivery, the Registration Statement,
the Prospectus, and other related matters as the Representatives
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) Xxxxx, Xxxxx & Xxxxx, counsel for the Company, shall
have furnished to the Representatives their written opinion, which
may be subject to reasonable and customary assumptions,
qualifications and limitations and shall be dated such Time of
Delivery, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus as amended
or supplemented, and all of the issued shares of capital
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stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing in each jurisdiction in which the
conduct of its business or the ownership or leasing of
property requires such qualification, except where
failure to qualify would not in the aggregate have a
material adverse effect upon the Company and its
subsidiaries taken as a whole;
(iv) Each Significant Subsidiary of the Company
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation; and all of the issued
shares of capital stock of each such subsidiary have been
duly and validly authorized and issued, are fully paid
and non-assessable, and (except for directors' qualifying
shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities or claims;
(v) To such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the
subject which the Company has reasonable cause to believe
will individually or in the aggregate have a material
adverse effect on the financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to such counsel's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(vi) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered
and constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the
Indenture, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(viii) Assuming due authorization and execution
by the Trustee, the Indenture has been duly authorized,
executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency,
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reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(ix) Assuming due authorization and execution by
the Trustee, the issue and sale of the Designated
Securities and the compliance by the Company with all of
the provisions of this Agreement and the Pricing
Agreement with respect to the Designated Securities and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, the effects of which would, in the aggregate, be
materially adverse to the Company and its subsidiaries
taken as a whole, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute,
order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of
their properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the issue
and sale of the Designated Securities or the consummation
by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture with
respect to the Designated Securities, except as have been
obtained under the Act and the Trust Indenture Act, and
such consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(xi) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and other financial data therein, as
to which such counsel need express no opinion or belief),
when they became effective or were filed with the
Commission, as the case may be, appear to have complied
as to form in all material respects with the requirements
of the Act, or the Exchange Act, as applicable, and the
rules and regulation of the Commission thereunder; and
such counsel shall also state that no facts have come to
their attention that lead them to believe that any of
such documents, when such documents became effective or
were so filed, as the case may be, contained, in the case
of a registration statement which became effective under
the Act, an untrue statement of a material fact, or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were
filed under the Act or
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the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made
when such documents were so filed, not misleading; and
(xii) The Registration Statement and the
Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the Company
prior to the Time of Delivery for the Designated
Securities (other than the financial statements and other
financial data therein, as to which such counsel need
express no opinion or belief) appear to comply as to form
in all material respects with the requirements of the Act
and the rules and regulations thereunder; such counsel
shall also state that no facts have come to their
attention that lead them to believe that, as of its
effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time
of Delivery (other than the financial statements and
other financial data therein, as to which such counsel
need express no opinion or belief) contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as
of its date, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the
financial statements and other financial data therein, as
to which such counsel need express no opinion or belief)
contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in
which they were made, not misleading or that, as of the
Time of Delivery, either the Registration Statement or
the Prospectus as amended or supplemented or any other
amendment or supplement thereto made by the Company prior
to such Time of Delivery (other than the financial
statements and other financial data therein, as to which
such counsel need express no opinion or belief) contains
an untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein,
in light of the circumstances in which they were made,
not misleading, and they do not know of any amendment to
the Registration Statement required to be filed or any
contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus
as amended or supplemented which are not filed or
incorporated by reference or described as required.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
federal laws of the United States and the General Corporation Law of the
State of Delaware and shall be entitled to rely in respect of the opinion
in this clause upon opinions of local counsel believed to be reputable or
counsel employed by the Company, and in respect of matters of fact, upon
certificates of officers of the Company or its transfer agent;
-12-
(d) On the date of the Pricing Agreement for such
Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the Company
who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives
a letter, dated the date of the Pricing Agreement for such
Designated Securities and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with
respect to such letter dated such Time of Delivery, as to such
other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented
there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in the
business, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in
Clause (i) or (ii), is in the reasonable judgment of the
Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as amended or
supplemented;
(f) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities
by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a National Emergency or war, if the effect of any
such event specified in this clause (iii) in the reasonable
judgment of the Representatives makes it impracticable or
inadvisable to
-13-
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated by the
Prospectus as amended and supplemented; and
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery of the
Designated Securities a certificate or certificates of officers of
the Company satisfactory to the Representatives as to the accuracy
in all material respects of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, and as to the
matters set forth in subsections (a) and (e) of this Section.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to
the Securities prepared by the Company, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, Prospectus or the Registration Statement, or
any such amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities, and provided, further, that the Company shall not be liable to
any Underwriter under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus, any preliminary prospectus
supplement, or with respect to any Prospectus as amended or supplemented,
to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold Securities to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) if the Company
has previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as
-14-
amended or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party,
and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. Notwithstanding the
foregoing, in no event shall more than one such separate counsel
in each jurisdiction where an action is commenced be retained for
all indemnified Parties together and neither the indemnified Party
nor the indemnifying Party, in the instance where the indemnifying
Party has assumed the defense of the indemnified Party, shall
settle any action, proceeding or investigation with respect to the
indemnified Party without the written consent of the other, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute
to the amount paid or payable to such indemnified party as a
result of such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate to
reflect the relative
-15-
benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Designated Securities on the
other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the
Company to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, prejudice resulting
from any failure to give notice of any action under sub-section
(c), knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the applicable
Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not
joint.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the
-16-
meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties reasonably satisfactory to the representatives to purchase such
Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or
the Company notifies the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives or the Company
shall have the right to postpone the Time of Delivery for such Designated
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the opinion of the Representatives may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase
under the Pricing Agreement relating to such Designated Securities
and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase
under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided
in subsection (a) above, the aggregate principal amount of
-17-
Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof or as the result of the failure to satisfy the condition
set forth in Section 7(g) hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Designated Securities
covered by such Pricing Agreement except as provided in Section 6 and
Section 8 hereof; but, if for any other reason Designated Securities are
not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through the Representatives for all
reasonable out-of-pocket expenses approved in writing by the
Representatives, including reasonable fees and disbursements of counsel,
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the
Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Representatives
as set forth in the Pricing Agreement; and if to the Company, shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement: Attention:
Corporate Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex
or facsimile transmission to such Underwriter at its address set forth in
its Underwriters'
-18-
Questionnaire or telex constituting such Questionnaire, which address will
be supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of the Company and each person who controls the
Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
-19-
If the foregoing is in accordance with your understanding, please
sign and return to us eight counterparts hereof.
Very truly yours,
BURLINGTON NORTHERN SANTA FE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name:
Title:
Accepted as of the date hereof:
XXXXXXX, SACHS & CO.
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
SALOMON BROTHERS INC
By: XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Sachs & Co.
------------------------
Name:
Title:
By: X.X. XXXXXX SECURITIES INC.
By: /s/ X. Xxxxxx Millet
-------------------------
Name: X. Xxxxxx Xxxxxx
Title: Managing Director
On behalf of each of the Underwriters
-20-
ANNEX I
PRICING AGREEMENT
__________________, 19__
[
Underwriters
]
As Representatives of the several
Underwriters named in Schedule I hereto
Dear Sirs:
Burlington Northern Santa Fe Corporation, a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated __________, 199_ (the
"Underwriting Agreement"), between the Company on the one hand and [ ] as
Co-Representatives, on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us seven counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters and the Company. It is understood that
your acceptance of this letter on behalf of each of the Underwriters is or
will be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
BURLINGTON NORTHERN SANTA FE
CORPORATION
By: __________________________
Name:
Title:
Accepted as of the date hereof:
By: __________________________
Name:
Title:
On behalf of each of the Underwriters
2
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Purchased
-----------
[ ] $
[Names of Underwriters] $
------------
Total...................................................... $
============
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
___% of the principal amount of the Designated
Securities, plus accrued interest from ______________ to _____________
[and accrued amortization, if any, from ________________ to
____________]
Purchase Price by Underwriters:
__% of the principal amount of the Designated
Securities, plus accrued interest from __________ to _________ [and
accrued amortization, if any, from ____________ to ____________]
Specified funds for payment of purchase price:
[By certified or official bank check or checks, payable to the order of
the Company in [[New York] [Clearing House] [immediately available]
[funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available funds]
Indenture:
Indenture dated ____________, 19__, between the Company
and _________________, as Trustee
Maturity:
Interest Rate:
[__%] [Zero Coupon] [See Floating Rate Provisions]
II-1
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise
than through the sinking fund, in whole or in part at the option of the
Company, in the amount of [$] or an integral multiple thereof,
[on or after ______________, at the following redemption prices
(expressed in percentages of principal amount.) (f [redeemed on or
before _____________, ___% and if] redeemed during the 12-month period
beginning _______________,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling in or after ______________,
__________, at the election of the Company, at a redemption price equal
to the principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$] principal amount of Designated Securities on __________ in
each of the years __________ through ______ at 100% of their principal
amount plus accrued interest][, together with
II-2
[cumulative] [noncumulative] redemptions at the option of the Company to
retire an additional [$] principal amount of Designated Securities in
the years ______ through ______ at 100% of their principal amount plus
accrued interest].
[If Securities are extendable debt Securities, insert --
Extendable provisions:
Securities are repayable on ________, [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be ________%, and thereafter annual
interest rate will be adjusted on ___________, _______ and ___________
to a rate not less than __% of the effective annual interest rate on
U.S. Treasury obligations with ___________-year maturity date].]
[If Securities are Floating Rate debt Securities, insert --
Floating rate provisions:
Initial annual interest rate will be __% through ________ and thereafter
will be adjusted [monthly] [on each _____________, ________________, and
____________] [to an annual rate of __% above the average rate for
_____-year [month] [securities] [certificates of deposit] issued by
________ and ________ [insert names of banks].] [and the annual interest
rate [thereafter] [from __________ through ___________] will be the
interest yield equivalent of the weekly average per annum market
discount rate for _____-month Treasury bills plus __% of Interest
Differential (the excess, if any, of (i) then current weekly average per
annum secondary market yield for _____-month certificates of deposit
over (ii) then current interest yield equivalent of the weekly average
per annum market discount rate for ____-month Treasury bills); [from
_________ and thereafter the rate will be the then current interest
yield equivalent plus ___% of Interest Differential].]
Defeasance provisions:
Terms of Delivery:
Closing Location:
II-3
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
II-4
ANNEX II
DESCRIPTION OF COMFORT LETTER OF
COOPERS & XXXXXXX AND PRICE WATERHOUSE
I. Coopers & Xxxxxxx L.L.P. shall deliver to the Underwriters a letter with
respect to the Company and with respect to Burlington Northern Inc. ("BNI")
to the effect that:
A. They are independent accountants with respect to the Company and
BNI within the meaning of the Act and the applicable published
rules and regulations thereunder.
B. In their opinion, the consolidated financial statements and
financial statement schedules of BNI audited by them and
incorporated by reference in the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the published rules and regulations
thereunder with respect to registration statements on Form S-3.
C. They have not audited any financial statements of BNI as of any date
or for any date or for any period subsequent to December 31, 1994;
although they have conducted an audit for the year ended
December 31, 1994, the purpose (and therefore the scope) of such
audit was to enable them to express their opinion on the consolidated
financial statements as of December 31, 1994 and for the year then
ended, but not on the financial statements for any interim period
within such year. Therefore, they are unable to and do not express
any opinion on the unaudited consolidated balance sheets and the
unaudited consolidated statements of operations and of cash flows
incorporated by reference in the Registration Statement or on the
financial position, results of operations or cash flows as of any
date or for any period subsequent to December 31, 1994.
D. BNSF was incorporated in Delaware on December 16, 1994, for the
purpose of effecting a business combination between BNI and Santa
Fe Pacific Corporation (SFP) under the Holding Company Structure.
Under the Holding Company Structure, BNSF created two
subsidiaries. One such subsidiary merged with and into BNI, and
the other such subsidiary merged with and into SFP. Each holder of
one share of BNI common stock received one share of BNSF common
stock and each holder of one share of SFP common stock received
0.41143945 shares of BNSF common stock. The rights of each
stockholder of BNSF are substantially identical to the rights of a
stockholder of BNI, and the Holding Company Structure has the same
economic effect with respect to the stockholders of BNI and SFP as
would a direct merger of BNI and SFP. As a result of the merger,
BNI became a wholly-owned subsidiary of the Company.
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E. They have not audited any financial statements of BNSF. The BNSF
unaudited consolidated statements of income for the three-month and
nine-month periods ended September 30, 1995 and 1994, and cash flows
for the nine-month periods ended September 30, 1995 and 1994 include
in the Company's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1995, reflect BNI's historical results for
such periods and SFP's results from September 22, 1995 (the effective
date of the Merger) through September 30, 1995. The unaudited
consolidated balance sheets of BNSF included in the Company's
quarterly Report on Form 10-Q reflects (i) BNI historical amounts at
December 31, 1994 and (ii) BNI historical amounts plus assets and
liabilities of SFP at September 30, 1995, including the fair value
write-up of SFP resulting from the application of purchase accounting.
They are unable to and do not express any opinion on the unaudited
consolidated balance sheet of BNSF as of September 30, 1995, the
unaudited consolidated statements of income and cash flows for the
three-month and nine-month periods ended September 30, 1995 and 1994,
included in the Company's Quarterly Report on Form 10-Q for the
quarterly periods ended September 30, 1995, incorporated by reference
in the Registration Statement.
F. For purposes of this letter, they have read certain minutes of
meetings of the Board of Directors of the Company and BNI and have
carried out other procedures to a date within three business days of
the date of the related Pricing Agreement (the "Cut-Off Date") as
follows:
1. With respect to the three-month periods ended March 31,
1995 and 1994 and the three-month and six-month periods
ended June 30, 1995 and 1994 and the three- and
nine-month periods ended September 30, 1995 and 1994 of
BNI, and the three-month and nine-month periods ended
September 30, 1995 and 1994 of both the Company and BNI,
they have:
(i). performed the procedures specified by the American
Institute of Certified Public Accountants for a
review of interim financial information as
described in SAS No. 71, Interim Financial
Information, on the unaudited consolidated balance
sheets and the unaudited consolidated statements of
operations and of cash flows for the periods
included in BNI's Quarterly Report on Form 10-Q for
the quarters ended March 31, June 30, and
September 30, 1995, all incorporated by reference
in the Registration Statement.
(ii). inquired of certain officials of the Company and
BNI who have responsibility for financial and
accounting matters whether the unaudited
consolidated financial statements referred to in
1(i) comply as to form in all material respects
with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and
the published rules and regulations thereunder.
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2. With respect to the period from October 1, 1995 to October 31,
1995, they have:
(i). read the unaudited consolidated financial
statements of both the Company and BNI for October
of both 1995 and 1994, furnished to us by the
Company (these unaudited consolidated financial
statements did not include footnotes), officials
of the Company having advised us that no such
financial statements as of any date or for any
period subsequent to October 31, 1995 were
available.
(ii). inquired of certain officials of both the Company
and BNI who have responsibility for financial and
accounting matters whether the unaudited
consolidated financial statements referred to in
2(a) are stated on basis substantially consistent
with that of the audited consolidated financial
statements of BNI incorporated by reference in the
Registration Statement.
G. Nothing came to their attention as a result of the foregoing
procedures that caused them to believe that:
1. (i). any material modifications should be made to the
unaudited consolidated financial statements
described in F(1)(a), incorporated by reference in
the Registration Statement, for them to be in
conformity with generally accepted accounting
principles.
(ii). the unaudited consolidated financial statements
described in F(1)(a), incorporated by reference
in the Registration Statement, do not comply as
to form in all material respects with the
applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the
related published rules and regulations
thereunder.
2. (i). at October 31, 1995, there was any change
in the common stock, long-term debt including
current portion and commercial paper, net
current liabilities or stockholders' equity of
the Company as compared with amounts shown in
the September 30, 1995 unaudited consolidated
balance sheet, incorporated by reference in the
Registration Statement, except in all instances
for changes that the Registration Statement
discloses have occurred or may occur.
(ii). for the period from October 1, 1995 to October
31, 1995, there were any changes, as compared to
the corresponding period in the preceding year,
in revenues, net income or earnings per common
share of the Company, except in all instances
for changes that the Registration Statement
discloses have occurred or may occur.
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3. (i). at October 31, 1995, there was any change
in the common stock and additional paid-in
capital, long-term debt including current
portion and commercial paper, net current
liabilities or stockholder's equity of BNI as
compared with amounts shown in the September 30,
1995 unaudited consolidated balance sheet,
incorporated by reference in the Registration
Statement, except in all instances for changes
that the Registration Statement discloses have
occurred or may occur.
(ii). for the period from October 1, 1995 to October
31, 1995, there were any changes, as compared to
the corresponding period in the preceding year,
in revenues or net income of BNI, except in all
instances for changes that the Registration
Statement discloses have occurred or may occur.
H. They have made inquiries of certain officials of BNI who have
responsibility for financial and accounting matters as to whether at
the Cut-Off Date there was any change in capital stock or increase in
long-term debt of BNI as compared with amounts shown on the most
recent unaudited consolidated balance sheet information incorporated
by reference in the Registration Statement. On the basis of these
inquiries and their reading of the minutes as described in F, nothing
came to their attention that caused them to believe that there
was any such change or increase, except in all instances for changes
which the Registration Statement discloses have occurred or may occur
except as described in their letter.
I. They also performed the following procedures:
1. read the unaudited pro forma combined balance sheets and
the related unaudited pro forma combined statements of
operations incorporated by reference in the Registration
Statement.
2. inquired of certain officials of the Company and BNI and
of certain officials of Santa Fe Pacific Corporation who
have responsibility for financial and accounting matters
about: (a) the basis for their determination of the pro
forma adjustments; and (b) whether the unaudited pro
forma combined financial statements referred to in (1)
comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X.
3. compared the historical financial information for BNI in
the pro forma combined financial statements incorporated
by reference in the registration statement with the
historical financial information for BNI in the audited
consolidated financial statements described in the
introductory paragraph of this letter or to amounts in
the unaudited consolidated financial statements described
in G(1) to the extent such amounts are included in or can
be derived from such statements, and found them to be in
agreement.
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4. proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the
unaudited pro forma combined financial statements.
J. Nothing came to their attention as a result of such procedures
that caused them to believe that such unaudited pro forma combined
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X and that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements.
K. For the purposes of this letter, they have also read the items
identified by the Underwriters on the attached copy of the
documents forming part of the Registration Statement and have
performed specified procedures which were applied as indicated to
the items identified on the attached copy of such documents.
II. Price Waterhouse LLP shall deliver to the Underwriters a letter
with respect to the Company and Santa Fe Pacific Corporation
("SFP") to the effect that:
A. They are independent accountants with respect to the Company and
SFP within the meaning of the Act and the applicable published
rules and regulations thereunder.
B. In their opinion, the consolidated financial statements audited by
them and incorporated by reference in the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Securities Exchange Act
of 1934 (the "Exchange Act") and the published rule and
regulations thereunder with respect to registration statements on
Form S-3.
C. They have not audited any financial statements of SFP as of any date
or for any period subsequent to December 31, 1994; although they have
conducted an audit for the year ended December 31, 1994, the purpose
(and therefore the scope) of such audit was to enable them to express
their opinion on the consolidated financial statements as of
December 31, 1994 and for the year then ended, but not on the
financial statements for any interim period within such year.
Therefore, they are unable to and do not express any opinion on the
unaudited consolidated statements of operations and of cash flows
incorporated by reference in the Registration Statement or on the
financial position, results of operations or cash flows as of any
date or for any period subsequent to December 31, 1994.
D. With respect to the three-month periods ended March 31, 1995 and
1994, the three- and six-month periods ended June 30, 1995 and
1994 and the period from January 1, 1995 through September 21,
1995, they have read the minutes of specified meetings of the
Board of Directors of SFP and have carried out other procedures to
a date within three business days prior to the date of the related
Pricing Agreement (the "Cut-Off Date") as follows:
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1. performed the procedures specified by the American Institute
of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim
Financial Information, on the unaudited consolidated balance
sheets and the unaudited consolidated statements of
operations and of cash flows for the periods included in
SFP's quarterly reports on Form 10-Q for the quarters ended
March 31 and June 30, 1995 incorporated by reference in
the Registration Statement and read the unaudited consolidated
statement of operations for the period from January 1, 1995
through September 21, 1995; and
2. inquired of certain officials of SFP who have responsibility
for financial and accounting matters whether the unaudited
consolidated financial statements incorporated by reference
in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the
published rules and regulations thereunder and whether the
unaudited consolidated statement for the period
January 1, 1995 through September 21, 1995 is stated on the
basis substantially consistent with that of the corresponding
amounts in the audited consolidated financial statements
incorporated by reference in the Registration Statement.
E. Nothing came to their attention as a result of the foregoing
procedures that caused them to believe that:
1. (i) the unaudited consolidated financial statements
describe in D(1) above, incorporated by reference in the
Registration Statement, do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form
10-Q and the published rules and regulations thereunder
or (ii) any material modifications should be made to the
unaudited consolidated financial statements described in
D(1) for them to be in conformity with generally accepted
accounting principles; or
2. the unaudited consolidated statement of operations for
the period January 1, 1995 through September 21, 1995 was
not stated on a basis substantially consistent with that
of the corresponding amounts in the audited financial
statements incorporated by reference in the Registration
Statement; or
3. for the period from January 1, 1995 to September 21,
1995, there were any decreases, as compared with the
corresponding period in the preceding year, in revenues
or in the total or per-share amounts of income from
continuing operations or of net income, except in all
instances for changes or decreases which the Registration
Statement discloses have occurred or may occur.
F. They also performed the following procedures:
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1. read the unaudited pro forma combined statements of
operations incorporated by reference in the Registration
Statement.
2. inquired of certain officials of the Company and SFP who
have responsibility for financial and accounting matters
about (a) the basis for their determination of the pro
forma adjustments; and (b) whether the unaudited pro
forma combined financial statements referred to in (1)
comply as to form in all material respect with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X.
3. compared the historical financial information for SFP in the
pro forma combined statements of operations incorporated by
reference in the Registration Statement with the historical
financial information for SFP in the audited consolidated
financial statements described in the introductory paragraph
of their letter or to amounts in the unaudited consolidated
statement of operations for the period January 1, 1995
through September 21, 1995 described in D(1) to the extent
such amounts are included in or can be derived from such
statements, and found them to be in agreement.
4. proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the unaudited
pro forma combined statements of operations.
G. Nothing came to their attention as a result of such procedures
that caused them to believe that such unaudited pro forma combined
statements of operations does not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X and that the pro form a adjustments
have not been properly applied to the historical amounts in the
compilation of those statements.
H. For purposes of this letter, they have also read the items
identified by the Underwriters on the attached copy of the
documents forming part of the Registration Statement and have
performed specific procedures which were applied as indicated to
the items identified on the attached copy of such documents.
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