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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
AMENDMENT NO. 1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES
EXCHANGE ACT OF 1934
SANTA FE PACIFIC CORPORATION
(NAME OF SUBJECT COMPANY)
UNION PACIFIC CORPORATION
UP ACQUISITION CORPORATION
(BIDDERS)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(TITLE OF CLASS OF SECURITIES)
802183 1 03
(CUSIP NUMBER OF CLASS OF SECURITIES)
RICHARD J. RESSLER
ASSISTANT GENERAL COUNSEL
UNION PACIFIC CORPORATION
EIGHTH AND EATON AVENUES
BETHLEHEM, PENNSYLVANIA 18018
(610) 861-3200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
with a copy to:
PAUL T. SCHNELL, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
Union Pacific Corporation, a Utah corporation
("Parent") and UP Acquisition Corporation, a wholly-owned
subsidiary of Parent (the "Purchaser"), hereby amend and
supplement their Statement on Schedule 14D-1 ("Schedule 14D-1"),
filed with the Securities and Exchange Commission (the
"Commission") on November 9, 1994, with respect to the
Purchaser's offer to purchase 115,903,127 shares of Common Stock,
par value $1.00 per share (the "Shares"), of Santa Fe Pacific
Corporation, a Delaware corporation (the "Company").
Unless otherwise indicated herein, each capitalized
term used but not defined herein shall have the meaning assigned
to such term in Schedule 14D-1 or in the Offer to Purchase
referred to therein.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in Item 4 of the Schedule
14D-1 is hereby amended and supplemented by the following
information:
On November 9, 1994, Parent entered into a commitment
letter (the "Commitment"), dated November 9, 1994, among Parent,
Citicorp Securities, Inc., Credit Suisse and NationsBanc Capital
Markets, Inc., as co-arrangers, and Citibank, N.A., Credit Suisse
and NationsBank of North Carolina, N.A., as co-administrative
agents, to provide Parent and the Purchaser with a revolving
credit facility (the "Facility") in the amount of $2 billion.
The commitment of the banks pursuant to the Commitment is subject
to negotiation and execution of a definitive credit agreement
with respect to the Facility and related documents. The
Commitment is subject to certain specified conditions including,
among other things, (i) the absence of a material adverse change
in the business, financial condition, operations, performance or
properties of Parent, or Parent and its subsidiaries taken as a
whole, since December 31, 1993, except as disclosed in the
Parent's most recent annual report on Form 10-K or in its
quarterly reports on Form 10-Q for the first two fiscal quarters
of 1994, (ii) the absence of any change in loan syndication,
financial or capital market conditions generally that, in the
reasonable judgment of the co-arrangers, would materially impair
syndication of the Facility, (iii) the absence of a material
change in the terms of the tender offer as announced on November
8, 1994 and (iv) the absence of any litigation or other
proceedings that could reasonably be expected to have a material
adverse effect upon the syndication of the Facility or upon the
business, financial condition, operations, performance or
properties of Parent, or Parent and its subsidiaries taken as a
whole. The Commitment terminates on February 10, 1995, unless
extended, if definitive credit documentation has not been
executed prior to that date.
The final maturity of the Facility is up to five years
from the date the definitive credit documentation is executed.
The interest on the drawings under the Facility is expected to be
in the range of .325 to 1.00% above the London Interbank Offered
Rate per annum, based on Parent's credit rating. Alternatively,
at Parent's option, the interest on the drawings may be
calculated at a specified percentage above a base rate, as
determined by the parties, or through a competitive bid
procedure. The foregoing description of the terms and provisions
of the Commitment is qualified in its entirety by reference to
the text of the commitment letter, a copy of which is attached
hereto as Exhibit (b)(1).
The proceeds of the Facility will be made available to
finance the payment obligations arising out of the Offer and the
Proposed Merger. Additional funds which are required to acquire
the outstanding Shares pursuant to the Offer and the Proposed
Merger will be obtained in the manner described in Item 4 of
Schedule 14D-1.
On November 10, 1994, Parent issued a press release, a
copy of which is attached hereto as Exhibit (a)(11) and is
incorporated herein by reference, relating to the commitment
letter.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF
THE BIDDER.
The information set forth in Item (5)(a) of Schedule
14D-1 is hereby amended and supplemented by the following
information:
On November 9, 1994, Parent issued a press release, a
copy of which is attached hereto as Exhibit (a)(9) and is
incorporated herein by reference, announcing the Offer.
On November 10, 1994, Parent and the Purchaser
published a summary advertisement, a copy of which is attached
hereto as Exhibit (a)(10) and incorporated herein by reference,
relating to the Offer.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a) (9) Text of Press Release, dated November 9, 1994
issued by Parent.
(a) (10) Form of Summary Advertisement, dated November 10, 1994.
(a) (11) Text of Press Release, dated November 10, 1994 issued
by Parent.
(b) (1) Commitment Letter, dated November 9, 1994, among
Parent, Citicorp Securities, Inc., Credit Suisse and
NationsBanc Capital Markets, Inc., as co-arrangers, and
Citibank, N.A., Credit Suisse and NationsBank of North
Carolina, N.A., as co-administrative agents.
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: November 10, 1994
UNION PACIFIC CORPORATION
By: /s/ Gary M. Stuart
Title: Vice President and Treasurer
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: November 10, 1994
UP ACQUISITION CORPORATION
By: /s/ Gary M. Stuart
Title: Vice President and Treasurer
EXHIBIT INDEX
Exhibit
No. Description
(a) (9) Text of Press Release, dated
November 9, 1994.
(a) (10) Form of Summary Advertisement,
dated November 10, 1994.
(a) (11) Text of Press Release, dated November 10, 1994.
(b) (1) Commitment Letter, dated
November 9, 1994, among Parent,
Citicorp Securities, Inc.,
Credit Suisse and NationsBanc
Capital Markets, Inc., as co-
arrangers, and Citibank, N.A.,
Credit Suisse and NationsBank
of North Carolina, N.A., as co-
administrative agents.
Union Pacific Corporation Logo
News Release
______________________________________________________________________
Contact: 610-861-3382
Gary F. Schuster
Vice President-Corporate Relations
Martin Tower
Eighth and Eaton Avenues
Bethlehem, PA 18018
FOR IMMEDIATE RELEASE
UNION PACIFIC ANNOUNCES COMMENCEMENT
OF CASH TENDER OFFER
Bethlehem, PA, November 9, 1994 -- Union Pacific Corporation announced
today that it has commenced a cash tender offer for 115,903,127 shares
of Common Stock of Santa Fe Pacific Corporation at $17.50 per share
in connection with its proposal announced yesterday.
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares. The Offer is made solely by the Offer to Purchase
dated November 9, 1994 and the related Letter of Transmittal and
is being made to all holders of Shares. The Offer is not being made to
(nor will tenders be accepted from or on behalf of) holders of Shares
in any jurisdiction in which the making of the Offer or
the acceptance thereof would not be in compliance with the laws of such
jurisdiction. In those jurisdictions where securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer,
the Offer shall be deemed to be made on behalf of UP Acquisition
Corporation by CS First Boston Corporation ("CS First Boston") or
one or more registered brokers or dealers licensed under the laws of
such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
115,903,127 SHARES OF COMMON STOCK
OF
SANTA FE PACIFIC CORPORATION
AT
$17.50 NET PER SHARE
BY
UP ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF
UNION PACIFIC CORPORATION
UP Acquisition Corporation, a Utah corporation (the
"Purchaser") and a wholly-owned subsidiary of Union Pacific
Corporation, a Utah corporation ("Union Pacific"), hereby offers
to purchase 115,903,127 shares of Common Stock, par value $1.00
per share (the "Shares"), of Santa Fe Pacific Corporation, a
Delaware corporation (the "Company"), at a price of $17.50 per
Share, net to the seller in cash, without interest thereon, upon
the terms and subject to the conditions set forth in the Offer to
Purchase dated November 9, 1994 (the "Offer to Purchase") and in
the related Letter of Transmittal (which, together with any
amendments or supplements thereto, constitute the "Offer").
THE OFFER, THE PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON THURSDAY,
DECEMBER 8, 1994, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1)
THERE BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE
EXPIRATION OF THE OFFER A NUMBER OF SHARES WHICH, WHEN ADDED TO
THE SHARES BENEFICIALLY OWNED BY THE PURCHASER AND ITS
AFFILIATES, CONSTITUTES AT LEAST A MAJORITY OF THE SHARES
OUTSTANDING ON A FULLY DILUTED BASIS (THE "MINIMUM CONDITION"),
(2) THE COMPANY HAVING ENTERED INTO A DEFINITIVE MERGER AGREEMENT
WITH UNION PACIFIC AND THE PURCHASER TO PROVIDE FOR THE
ACQUISITION OF THE COMPANY PURSUANT TO THE OFFER AND THE PROPOSED
MERGER DESCRIBED IN THE OFFER TO PURCHASE, (3) THE STOCKHOLDERS
OF THE COMPANY NOT HAVING APPROVED THE AGREEMENT AND PLAN OF
MERGER BETWEEN THE COMPANY AND BURLINGTON NORTHERN INC. (THE
"BNI/SFP AGREEMENT"), (4) THE PURCHASER BEING SATISFIED THAT
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW HAS BEEN
COMPLIED WITH OR IS INVALID OR OTHERWISE INAPPLICABLE TO THE
OFFER AND THE PROPOSED MERGER, (5) THE PURCHASER BEING SATISFIED
THAT THE BNI/SFP AGREEMENT HAS BEEN TERMINATED IN ACCORDANCE WITH
ITS TERMS AND (6) RECEIPT OF AN INFORMAL WRITTEN OPINION IN FORM
AND SUBSTANCE SATISFACTORY TO THE PURCHASER FROM THE STAFF OF THE
INTERSTATE COMMERCE COMMISSION ("ICC"), WITHOUT THE IMPOSITION OF
ANY CONDITIONS UNACCEPTABLE TO THE PURCHASER, THAT THE VOTING
TRUST TO BE USED IN CONNECTION WITH THE OFFER AND THE PROPOSED
MERGER IS CONSISTENT WITH THE POLICIES OF THE ICC AGAINST
UNAUTHORIZED ACQUISITIONS OF CONTROL OF A REGULATED CARRIER. THE
OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS CONTAINED IN
THE OFFER TO PURCHASE. THE OFFER IS NOT CONDITIONED UPON RECEIPT
OF THE ICC'S APPROVAL OF THE PURCHASER'S ACQUISITION OF CONTROL
OF THE COMPANY. IF THE STOCKHOLDERS OF THE COMPANY APPROVE THE
BNI/SFP AGREEMENT, THE PURCHASER WILL TERMINATE THE OFFER.
The purpose of the Offer is to acquire a majority of
the Shares as the first step in a negotiated acquisition of the
entire equity interest in the Company. Union Pacific is seeking
to negotiate with the Company a definitive acquisition agreement
(the "Proposed Merger Agreement") pursuant to which the Company
would, as soon as practicable following consummation of the
Offer, consummate a merger (the "Proposed Merger") with the
Purchaser or another direct or indirect wholly-owned subsidiary
of Union Pacific. In the Proposed Merger, each outstanding Share
(other than Shares held by Union Pacific, the Purchaser or any
other direct or indirect wholly-owned subsidiary of Union Pacific
and Shares held in the treasury of the Company) would be
converted into the right to receive 0.354 shares of common stock,
par value $2.50 per share, of Union Pacific.
The Purchaser expressly reserves the right, in its sole
judgment, at any time or from time to time and regardless of
whether any of the events set forth in Section 14 of the Offer to
Purchase shall have been determined by the Purchaser to have
occurred, (i) to extend the period of time during which the Offer
is open and thereby delay acceptance for payment of, and the
payment for, any Shares, by giving oral or written notice of such
extension to the Depositary (as defined in the Offer to Purchase)
and (ii) to amend the Offer in any respect by giving oral or
written notice of such amendment to the Depositary. Any such
extension, amendment or termination will be followed as promptly
as practicable by public announcement thereof, such announcement
in the case of an extension, to be issued not later than 9:00
A.M., New York City time, on the next business day after the
previously scheduled Expiration Date (as defined in the Offer to
Purchase). During any such extension, all Shares previously
tendered and not withdrawn will remain subject to the Offer,
subject to the right of a tendering stockholder to withdraw such
stockholder's Shares.
If more than 115,903,127 Shares shall be properly
tendered prior to the Expiration Date and not withdrawn in
accordance with Section 4 of the Offer to Purchase, the Purchaser
will, upon the terms and subject to the conditions of the Offer,
purchase 115,903,127 Shares on a pro rata basis (with adjustments
to avoid purchases of fractional Shares) based upon the number of
Shares properly tendered prior to the Expiration Date and not
withdrawn. If fewer than 115,903,127 Shares shall have been
properly tendered prior to the Expiration Date and not withdrawn
and the number of Shares so tendered and not withdrawn shall not
have satisfied the Minimum Condition, the Purchaser may (i)
terminate the Offer and return all tendered Shares to tendering
stockholders, (ii) extend the Offer and retain all such Shares
until the expiration of the Offer, as extended, subject to the
terms of the Offer (including any rights of stockholders to
withdraw their Shares), or (iii) waive the Minimum Condition and
purchase all properly tendered Shares. Due to the difficultly of
determining the precise number of Shares properly tendered and
not withdrawn, if proration is required, the Purchaser does not
expect to announce the final results of proration or pay for any
Shares until at least seven New York Stock Exchange, Inc. trading
days after the Expiration Date. Preliminary results of proration
will be announced by press release as promptly as practicable
after the Expiration Date. Holders of Shares may obtain such
preliminary information when it becomes available from the
Information Agent and may be able to obtain such information from
their brokers.
For purposes of the Offer, the Purchaser will be deemed
to have accepted for payment, and thereby purchased, Shares
validly tendered and not withdrawn as, if and when the Purchaser
gives oral or written notice to the Depositary of the Purchaser's
acceptance of such Shares for payment pursuant to the Offer. In
all cases, upon the terms and subject to the conditions of the
Offer, payment for Shares purchased pursuant to the Offer will be
made by deposit of the purchase price therefor with the
Depositary which will act as agent for tendering stockholders for
the purpose of receiving payment from the Purchaser and
transmitting payment to validly tendering stockholders. Under no
circumstances will interest on the purchase price for Shares be
paid by the Purchaser by reason of any delay in making such
payment. In all cases, payment for Shares purchased pursuant to
the Offer will be made only after timely receipt by the
Depositary of (a) certificates for such Shares ("Certificates")
or a book-entry confirmation of the book-entry transfer of such
Shares into the Depositary's account at the Depository Trust
Company, the Midwest Securities Trust Company or the Philadelphia
Depository Trust Company (each a "Book-Entry Transfer Facility"
and, collectively, the "Book-Entry Transfer Facilities"),
pursuant to the procedures set forth in the Offer to Purchase,
(b) the Letter of Transmittal (or facsimile thereof) properly
completed and duly executed, with any required signature
guarantees, or an Agent's Message (as defined in the Offer to
Purchase) in connection with a book-entry transfer, and (c) any
other documents required by the Letter of Transmittal.
If, for any reason whatsoever, acceptance for payment
of any Shares tendered pursuant to the Offer is delayed, or if
the Purchaser is unable to accept for payment or pay for Shares
tendered pursuant to the Offer, then, without prejudice to the
Purchaser's rights set forth in the Offer to Purchase, the
Depositary may, nevertheless, on behalf of the Purchaser, retain
tendered Shares and such Shares may not be withdrawn except to
the extent that the tendering stockholder is entitled to and duly
exercises withdrawal rights as described in Section 4 of the
Offer to Purchase. Any such delay will be an extension of the
Offer to the extent required by law.
If certain events occur, the Purchaser will not be
obligated to accept for payment or pay for any Shares tendered
pursuant to the Offer. If any tendered Shares are not purchased
pursuant to the Offer for any reason (including because of
proration) or are not paid for because of invalid tender, or if
Certificates are submitted representing more Shares than are
tendered, Certificates representing unpurchased or untendered
Shares will be returned, without expense to the tendering
stockholder (or, in the case of Shares delivered by book-entry
transfer into the Depositary's account at a Book-Entry Transfer
Facility pursuant to the procedures set forth in Section 3 of the
Offer to Purchase, such Shares will be credited to an account
maintained within such Book-Entry Transfer Facility), as soon as
practicable following the expiration, termination or withdrawal
of the Offer and determination of the final results of proration.
Except as otherwise provided in Section 4 of the Offer
to Purchase, tenders of Shares made pursuant to the Offer are
irrevocable. Shares tendered pursuant to the Offer may be
withdrawn at any time prior to 12:00 Midnight, New York City
time, on Thursday, December 8, 1994 (or if the Purchaser shall
have extended the period of time for which the Offer is open, at
the latest time and date at which the Offer, as so extended by
the Purchaser, shall expire) and unless theretofore accepted for
payment and paid for by the Purchaser pursuant to the Offer, may
also be withdrawn at any time after January 7, 1995. In order
for a withdrawal to be effective, a written, telegraphic or
facsimile transmission notice of withdrawal must be timely
received by the Depositary at one of its addresses set forth on
the back cover of the Offer to Purchase. Any notice of
withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn, and
if Certificates for Shares have been tendered, the name of the
registered holder of the Shares as set forth in the tendered
Certificate, if different from that of the person who tendered
such Shares. If Certificates for Shares have been delivered or
otherwise identified to the Depositary, then prior to the
physical release of such Certificates, the serial numbers shown
on such Certificates evidencing the Shares to be withdrawn must
be submitted to the Depositary and the signature on the notice of
withdrawal must be guaranteed by a member firm of a registered
national securities exchange, a member of the National
Association of Securities Dealers, Inc. or a commercial bank or
trust company having an office or correspondent in the United
States (each an "Eligible Institution") unless such Shares have
been tendered for the account of an Eligible Institution. If
Shares have been tendered pursuant to the procedures for book-
entry transfer set forth in Section 3 of the Offer to Purchase,
any notice of withdrawal must also specify the name and number of
the account at the appropriate Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with such
Book-Entry Transfer Facility's procedures. Withdrawal of tenders
of Shares may not be rescinded, and any Shares properly withdrawn
will be deemed not to be validly tendered for purposes of the
Offer. Withdrawn Shares may, however, be retendered by repeating
one of the procedures in Section 3 of the Offer to Purchase at
any time before the Expiration Date. The Purchaser, in its sole
judgment, will determine all questions as to the form and
validity (including time of receipt) of notices of withdrawal,
and such determination will be final and binding.
The information required to be disclosed by Rule 14d-
6(e)(1)(vii) of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended, is contained in the
Offer to Purchase and is incorporated herein by reference.
On November 9, 1994, the Purchaser sent or gave the
Offer to Purchase and the related Letter of Transmittal and other
relevant materials to the Company's stockholders and sent or gave
such materials to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose
nominees, appear on the Company's stockholder list, or, if
applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to
beneficial owners of Shares.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF
TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ
CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
Questions and requests for assistance may be directed
to the Information Agent or the Dealer Manager at their
respective addresses and telephone numbers set forth below.
Requests for copies of the Offer to Purchase, the Letter of
Transmittal and other related materials may be directed to the
Information Agent, the Dealer Manager or to brokers, dealers,
commercial banks or trust companies.
The Information Agent for the Offer is:
MORROW & CO., INC.
909 Third Avenue, 20th Floor 39 South LaSalle Street
New York, New York 10022 Chicago, Illinois 60603
(212) 754-8000 (Call Collect) (312) 444-1150 (Call Collect)
or
Call Toll Free 1 (800) 662-5200
The Dealer Manager for the Offer is:
CS FIRST BOSTON
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
(212) 909-2000 (Call Collect)
November 10, 1994
[Union Pacific Letterhead] News Release
FOR IMMEDIATE RELEASE
UNION PACIFIC CORPORATION ANNOUNCED COMMITMENT LETTER
TO FINANCE SANTA FE ACQUISITION
Bethlehem, PA, November 10, 1994 . . . Union Pacific
Corporation (NYSE: UNP) announced today that it signed a
commitment letter with a group of banks, including
Citicorp Securities, Inc., Credit Suisse and NationsBanc
Capital Market, Inc. to provide aggregate financing of $2
billion for Union Pacific's tender offer for Santa Fe
Pacific Corporation (NYSE: SFX).
The commitment letter is subject to certain
conditions, including, among others, the execution of
mutually acceptable loan documentation, the absence of a
material adverse change in Union Pacific or Santa Fe and
the absence of a material change in the terms of Union
Pacific's tender offer for Santa Fe.
[EXECUTION COUNTERPART]
November 8, 1994
Union Pacific Corporation
Attention: Gary M. Stuart
Vice President and Treasurer
$2,000,000,000 Revolving Credit Facility
Commitment Letter
Ladies and Gentlemen:
You have advised us that Union Pacific Corporation (the
"Company") desires to establish a Revolving Credit Facility (the
"Facility"), the proceeds of which would be used for the
Company s general corporate purposes and to finance an
acquisition transaction (the "Acquisition") heretofore described
by the Company to the Co-Arrangers referred to in the Summary of
Terms and Conditions attached as Annex I (the "Summary of Terms
and Conditions"). You have asked Citibank, N.A. ("Citibank"),
Credit Suisse and NationsBank of North Carolina, N.A.
("NationsBank") (collectively, the "Co-Administrative Agents") to
commit to provide you with financing commitments for the entire
Facility.
Citicorp Securities, Inc. ("Citicorp Securities"), on behalf of
Citibank, and Credit Suisse and NationsBanc Capital Markets, Inc.
("NCMI", on behalf of NationsBank) (collectively, the "Co-
Arrangers") are pleased to inform you of the commitments of
Citibank, Credit Suisse and NationsBank on a several basis to
provide the entire amount of the Facility, subject to the terms
and conditions described in this letter and to the Summary of
Terms and Conditions (collectively, and together with the Fee
Letter referred to below, the "Commitment Letter"), such
commitments to be in the following amounts:
Citibank: $700,000,000
Credit Suisse: $650,000,000
NationsBank: $650,000,000
Syndication
The Co-Arrangers reserve the right (subject to the next
paragraph), prior to or after the execution of definitive
documentation with respect to the Facility, to syndicate all or a
portion of their respective commitments to one or more other
financial institutions that will become parties to such
definitive documentation pursuant to a syndication to be managed
by the Co-Arrangers (the financial institutions becoming parties
to such definitive documentation being collectively referred to
herein as the "Lenders"). You understand that the Co-Arrangers
intend to commence syndication efforts promptly and that they may
elect to appoint one or more syndication agents (which may
include Citibank, Credit Suisse or NationsBank ) to direct the
syndication efforts on their behalf.
The Co-Arrangers will act as the syndication agents with respect
to the Facility, and will manage all aspects of the syndication
in consultation with you, including the identity of and the
timing of all offers to potential Lenders, the acceptance of
commitments, and the determination of the amounts offered and the
compensation provided.
You agree to take all action as the Co-Arrangers may reasonably
request to assist them in forming a syndicate acceptable to them.
Your assistance in forming such a syndicate shall include but not
be limited to: (i) making senior management and representatives
of the Company available to participate in information meetings
with potential Lenders at such times and places as the Co-
Arrangers may reasonably request; (ii) using your best efforts to
ensure that the syndication efforts benefit from your lending
relationships; and (iii) providing the Co-Arrangers with all
information available to the Company reasonably deemed necessary
by them to successfully complete the syndication.
To ensure an orderly and effective syndication of the Facility,
you agree that until the later of the Closing Date (as defined in
the Summary of Terms and Conditions) and the termination of the
syndication (as determined by the Co-Arrangers), you will not,
and will not permit any of your affiliates to, syndicate or
issue, attempt to syndicate or issue, announce or authorize the
announcement of the syndication or issuance of, or engage in
discussions concerning the syndication or issuance of, any debt
facility or debt security (including any renewals thereof) in the
commercial bank market, without the prior written consent of the
Co-Arrangers, provided, however, that the foregoing shall not
limit your ability to issue commercial paper, equity, public debt
securities or privately placed debt securities, nor to borrow
under your existing credit facilities; and provided, that the
foregoing shall not prevent the renewal of the Company's
$600,000,000 Revolving Credit Agreement dated as of March 2,
1993, as amended, on terms that are not more onerous on the
Company than those for the Facility.
You agree that no additional agents, co-agents or arrangers will
be appointed, or other titles conferred, without the consent of
the Co-Arrangers. You agree that no Lender will receive any
compensation of any kind for its participation in the Facility,
except as expressly provided for in the Fee Letter (as defined
below) or in Annex I.
Conditions Precedent
The commitments hereunder are subject to: (i) the preparation,
execution and delivery of mutually acceptable loan documentation,
including a credit agreement incorporating substantially the
terms and conditions outlined in this Commitment Letter; (ii) the
absence of (A) a material adverse change in the business,
condition (financial or otherwise), operations, performance or
properties of the Company, or the Company and its subsidiaries
taken as a whole, since December 31, 1993, except as disclosed in
the Company's most recent annual report on Form 10-K or in its
quarterly reports on Form 10-Q for the first two fiscal quarters
of 1994, and (B) any change in loan syndication, financial or
capital market conditions generally that, in the reasonable
judgment of the Co-Arrangers, would materially impair syndication
of the Facility; (iii) the satisfaction of the Co-Arrangers that
there is no material change in the structure or terms of the
tender offer as announced on November 8, 1994; (iv) the accuracy
and completeness of all representations that you make to us and
all information that you furnish to us and your compliance with
the terms of this Commitment Letter; (v) the payment in full of
all fees, expenses and other amounts payable under this
Commitment Letter; (vi) a closing of the Facility on or prior to
February 10, 1995 or such later date as may be mutually agreed;
and (vii) the absence of any litigation or other proceedings that
could reasonably be expected to have a material adverse effect
upon the syndication of the Facility or upon the business,
condition (financial or otherwise), operations, performance or
properties of the Company, or the Company and its subsidiaries
taken as a whole.
Commitment Termination
The commitments set forth in this Commitment Letter will
terminate at 5:00 p.m. (New York City time) on February 10, 1995
or such later date as the Co-Arrangers may agree in writing,
unless the Facility closes on or before such date. Prior to such
date, this Commitment Letter may be terminated by you at any time
at your option upon payment of all fees, expenses and other
amounts then payable under this Commitment Letter.
Fees
In addition to the fees described in Annex I, you agree to pay
the fees set forth in that certain letter between you and us of
even date herewith (the "Fee Letter"). The terms of the Fee
Letter are an integral part of the commitment hereunder, and
constitute part of this Commitment Letter for all purposes
hereof. Each of the fees described in the Fee Letter shall be
nonrefundable when paid.
Indemnification
You agree to indemnify and hold harmless each Co-Arranger, each
Co-Administrative Agent, each Lender and each of their respective
affiliates and each of their respective officers, directors,
employees, agents, advisors and representatives (each, an
"Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without
limitation, fees and disbursements of counsel), joint or several,
that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection
with or relating to any investigation, litigation or proceeding
or the preparation of any defense with respect thereto, arising
out of or in connection with or relating to this Commitment
Letter or the loan documentation or the transactions contemplated
hereby or thereby or any use made or proposed to be made with the
proceeds of the Facility, whether or not such investigation,
litigation or proceeding is brought by the Company, any of its
shareholders or creditors, an Indemnified Party or any other
person, or an Indemnified Party is otherwise a party thereto, and
whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss,
liability or expense results from such Indemnified Party's gross
negligence or willful misconduct or arises out of a final, non-
appealable judgment against such Indemnified Party in favor of
the Company on the basis of a breach of this Commitment Letter or
the definitive loan documentation.
You agree that no Indemnified Party shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to
the Company or any of its shareholders or creditors for or in
connection with the transactions contemplated hereby, except to
the extent such liability is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful
misconduct; provided, that nothing in this paragraph shall be
deemed to constitute a waiver of any claim the Company may
hereafter have for breach by any party of this Commitment Letter
or the definitive loan documentation; and provided, further, that
in no event shall any Indemnified Party be liable for any
indirect or consequential damages.
Costs and Expenses
In further consideration of the commitments hereunder, and
recognizing that in connection herewith Citibank, Credit Suisse,
NationsBank and the Co-Arrangers are incurring substantial costs
and expenses (including, without limitation, fees and
disbursements of counsel and their syndication agent(s), filing
and recording fees and due diligence, syndication (including
printing, distribution and bank meetings), transportation,
computer, duplication, messenger, appraisal, audit, insurance and
consultant costs and expenses), you hereby agree to pay, or
reimburse Citibank, Credit Suisse, NationsBank and the Co-
Arrangers on demand for, all such reasonable costs and expenses
(whether incurred before or after the date hereof, but excluding
overhead expenses incurred prior to the date hereof), regardless
of whether any of the transactions contemplated hereby are
consummated. You also agree to pay all costs and expenses of
Citibank, Credit Suisse, NationsBank and the Co-Arrangers
(including, without limitation, fees and disbursements of
counsel) incurred in connection with the enforcement of any of
their rights and remedies hereunder.
Confidentiality
By accepting delivery of this Commitment Letter, you agree that
this Commitment Letter is for your confidential use only and that
neither its existence nor the terms hereof will be disclosed by
you to any person other than your officers, directors, employees,
accountants, attorneys and other advisors, and then only on a
"need to know" basis in connection with the transactions
contemplated hereby and on a confidential basis. Notwithstanding
the foregoing, following your acceptance of the provisions hereof
and your return of an executed counterpart of this Commitment
Letter to us as provided below, (i) you may make public
disclosure of the existence and amount of the commitments
hereunder (but excluding from any document or information so
disclosed the Fee Letter or any of the terms therein) and of the
identity of the Co-Arrangers and Co-Administrative Agents, (ii)
you may file a copy of this Commitment Letter (excluding,
however, the Fee Letter) in any public record in which it is
required by law to be filed and (iii) you may make such other
public disclosures of the terms and conditions of this Commitment
Letter as you are required by law or court order, in the opinion
of your counsel, to make.
Representations and Warranties of the Company
You represent and warrant that (i) all information concerning the
Company and its subsidiaries (excluding financial projections)
that has been or will hereafter be made available to Citibank,
Credit Suisse, NationsBank, any Co-Arranger, any Lender or any
potential Lender by you or any of your representatives in
connection with the transactions contemplated hereby is and will
be complete and correct in all material respects and does not and
will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements contained therein not misleading in light of the
circumstances under which such statements were or are made and
(ii) all financial projections concerning the Company and its
subsidiaries, if any, that have been or will be prepared by you
and made available to Citibank, Credit Suisse, NationsBank, any
Co-Arranger, any Lender or any potential Lender have been or will
be prepared in good faith based upon reasonable assumptions (it
being understood that such projections are subject to significant
uncertainties and contingencies, many of which are beyond the
Company's control, and that no assurance can be given that the
projections will be realized). You agree to supplement the
information and projections from time to time so that the
representations and warranties contained in this paragraph remain
correct.
In issuing this commitment, Citibank, Credit Suisse, NationsBank
and each Co-Arranger are relying on the accuracy of the
information furnished to them by or on behalf of the Company and
its affiliates without independent verification thereof.
No Third Party Reliance, Etc.
The agreements of Citibank, Credit Suisse, NationsBank and each
Co-Arranger hereunder and of any Lender that issues a commitment
to provide financing under the Facility are made solely for the
benefit of the Company and may not be relied upon or enforced by
any other person. Please note that those matters that are not
covered or made clear herein or in Annex I or in the Fee Letter
are subject to mutual agreement of the parties. The terms and
conditions of this commitment may be modified only in writing.
You should be aware that Citibank, Credit Suisse, NationsBank,
any Co-Arranger or one or more of their respective affiliates may
be providing financing or other services to parties whose
interests may conflict with yours. Be assured, however, that
consistent with the longstanding policy of each of Citibank,
Credit Suisse and NationsBank to hold in confidence the affairs
of its customers, none of said entities nor any of their
respective affiliates will furnish confidential information
obtained from you to any of its other customers. By the same
token, none of said entities nor any of their respective
affiliates will make available to you confidential information
that it obtained or may obtain from any other customer.
Governing Law, Etc.
This Commitment Letter shall be governed by, and construed in
accordance with, the laws of the State of New York. This
Commitment Letter sets forth the entire agreement between the
parties with respect to the matters addressed herein and
supersedes all prior communications, written or oral, with
respect hereto. This Commitment Letter may be executed in any
number of counterparts, each of which, when so executed, shall be
deemed to be an original and all of which, taken together, shall
constitute one and the same Commitment Letter. Delivery of an
executed counterpart of a signature page to this Commitment
Letter by telecopier shall be as effective as delivery of a
manually executed counterpart of this Commitment Letter. Your
obligations under the paragraphs captioned "Syndication" (fourth
paragraph), "Fees", "Indemnification", "Costs and Expenses" and
"Confidentiality" shall survive the expiration or termination of
this Commitment Letter.
Waiver of Jury Trial
EACH PARTY HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
COMMITMENT LETTER OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE
ACTIONS OF CITIBANK, CREDIT SUISSE, NATIONSBANK OR ANY CO-
ARRANGER OR THE COMPANY IN THE NEGOTIATION, PERFORMANCE OR
ENFORCEMENT HEREOF.
Please indicate your acceptance of the provisions hereof by
signing the enclosed copy of this Commitment Letter and the Fee
Letter and returning them to Douglas H. Greeff, Vice President,
Citicorp Securities, Inc., 399 Park Avenue, New York, New York
10043 (telecopier: 212-793-3963) at or before 5:00 p.m. (New York
City time) on Thursday, November 10, 1994, the time at which the
commitments hereunder (if not so accepted prior thereto) will
expire. If you elect to deliver this Commitment Letter by
telecopier, please arrange for the executed original to follow by
next-day courier.
Very truly yours,
CITICORP SECURITIES, INC., on its own behalf
and on behalf of Citibank, N.A.
By: /s/ Robert J. Harrity
_____________________
Title: Vice President
CREDIT SUISSE
By: /s/ Eileen O'Connell Fox
_____________________
Title: Member of Senior Management
By: /s/ Adrian Germann
_____________________
Title: Associate
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Michael J. Zupon
_____________________
Title: Director
NATIONSBANK OF NORTH CAROLINA, N.A.
By: /s/ Michael D. Monte
_____________________
Title: Vice President
ACCEPTED AND AGREED
this ___ day of ___, 199_:
UNION PACIFIC CORPORATION
By: /s/ Gary M. Stuart
_____________________
Title: Vice President and Treasurer
_________________________________________________________________
CITICORP ANNEX I
SECURITIES,
INC.
UNION PACIFIC CORPORATION
$2,000,000,000
REVOLVING CREDIT FACILITY
SUMMARY OF TERMS AND CONDITIONS
BORROWER: Union Pacific Corporation ( UPC ) or an
appropriate acquisition subsidiary under the
unconditional guarantee of UPC (in either
case, the Borrower ).
LENDERS: Citibank, N.A. ( Citibank ), Credit Suisse,
NationsBank of North Carolina, N.A.
( NationsBank ) and a syndicate of banks (the
Lenders ) to be arranged by the Borrower and
the Co-Arrangers referred to below.
CO-ARRANGERS: Citicorp Securities, Inc., Credit Suisse and
NationsBanc Capital Markets, Inc.
CO-ADMINISTRATIVE AGENTS:
Citibank, Credit Suisse and NationsBank.
FACILITY: An aggregate of up to $2 billion (the
Facility ).
COMMITMENT PERIOD: Until February 10, 1995 or such later date as
may be agreed by the parties in writing
(provided, that the Lenders shall have no
obligation to agree to any such extension).
PURPOSE: To finance the tender offer for not less than
a majority of the shares of Santa Fe Pacific
Corporation announced on November 8, 1994
(the tender offer ) and, after the
consummation of the tender offer, for general
corporate purposes of the Borrower.
MATURITY: Up to 5 years from the date (the Closing
Date ) of the signing of definitive credit
documentation.
UPFRONT FEES: As set forth in the fee letter.
AGENCY FEE: As set forth in the fee letter.
INTEREST RATES AND
INTEREST PERIODS: Eurodollar Rate option with margins set forth
in Attachment A, plus comparable Base Rate
and Competitive Bid options.
DOCUMENTATION: The commitments will be subject to
preparation, execution and delivery of
mutually acceptable loan documentation which
will contain appropriate conditions
precedent, representations and warranties,
covenants, events of default, yield
protection, funding loss, capital adequacy,
tax and other normal provisions. Such
provisions shall be based as closely as
reasonably practicable upon the comparable
provisions set forth in the existing
$800,000,000 Revolving Credit Agreement dated
as of March 2, 1993, as amended (the
Existing Agreement ) (subject always to the
rights of the Lenders and the Borrower to be
satisfied in form and substance with the
terms and conditions of the loan
documentation).
PREPAYMENT: Substantially similar to the prepayment
provisions in the Existing Agreement. In
addition, in the event of any disposition of
shares acquired pursuant to the Acquisition
(or shares of any successor company), the net
proceeds of such disposition shall be applied
forthwith to prepay the Loans (with
corresponding pro tanto reductions of the
commitments).
OPTIONAL COMMITMENT
REDUCTION: Substantially similar to corresponding
provisions in the Existing Agreement.
REPRESENTATIONS
AND WARRANTIES: To include corporate organization and
existence, good standing, authorization and
non-contravention of applicable
organizational documents, law or contracts,
enforceability, financial statements, no
material adverse change, no contravention of
the federal margin regulations, and ERISA
matters, and absence of material litigation
or proceedings, including without limitation
any such litigation or proceedings that may
have a material adverse effect on the
consummation of the Acquisition or on the
Borrower or any of its subsidiaries, taken as
a whole; and in addition, representations and
warranties as to environmental matters and
accuracy of information provided.
CONDITIONS PRECEDENT:
To include Board resolutions and other
necessary actions and approvals; secretary s
certificates; satisfactory legal opinions;
accuracy of representations and warranties
(provided, that the representations and
warranties as to the absence of any material
adverse change and as to litigation shall be
made as of the Closing Date only); absence of
any actual or incipient event of default;
absence of any material change in the
structure or terms of the tender offer as
announced, the satisfaction of the Lenders
with the related merger agreement and any
related voting trust arrangements, and
satisfaction (without waiver) of the
conditions set forth in the tender offer.
AFFIRMATIVE COVENANTS:
To include maintenance of books,
corporate existence, maintenance of
properties, compliance with laws and
insurance; net worth; delivery of financial
statements and other information; notice of
defaults and litigation; and delivery of
certificates regarding financial statements.
NEGATIVE COVENANTS: To include negative pledge clause; debt-to-
net-worth restriction; restriction on
fundamental changes; prohibition of sale of
certain stock; compliance with ERISA; no
material amendments of the tender offer
documentation or the related merger agreement
or voting trust arrangements without consent,
such consent not to be unreasonably withheld.
EVENTS OF DEFAULT: To include nonpayment of principal;
nonpayment of interest or fees within 10 days
after the date due; material breach of
representations and warranties; violation of
covenants for 30 days after notice; cross
acceleration of debt in excess of $20 million
principal amount in the aggregate; bankruptcy
of the Borrower or any of the Railroads; and
ERISA.
ASSIGNMENTS AND
PARTICIPATIONS: The Borrower may not assign its rights or
obligations under the Facility without the
prior written consent of the Lenders. The
Lenders shall be permitted to assign loans
and commitments with the consent of the
Borrower, such consent not to be unreasonably
withheld, and to grant participations in the
loans and commitments. Assignees will have
all the rights and obligations of the
assignor Lender. Participations shall be
without restriction. The voting rights for
participants will be limited to changes in
amount, tenor and rate.
INDEMNIFICATION: The loan documentation will include
indemnification of the Co-Arrangers, the
Co-Administrative Agents and the Lenders
and each of their respective affiliates,
officers, directors, employees, agents,
advisors and representatives (which
shall cover the matters referred to in,
and shall include the same exceptions as
are contained in, the Commitment Letter
under the heading Indemnification ).
EXPENSES: All reasonable legal, arrangement and out-of-
pocket expenses of the Co-Arrangers and Co-
Administrative Agents (including the
reasonable fees, disbursements and other
charges of Citibank s counsel) shall be
reimbursed by the Borrower.
LAW: New York; submission to New York
jurisdiction; waiver of jury trial.
_________________________________________________________________
Attachment A
UNION PACIFIC CORPORATION
PRICING FOR 5-YEAR ACQUISITION REVOLVING CREDIT FACILITY
________________________________________________________________
Ratings Applicable Percentage
UNDRAWN DRAWN**
________________________________________________________________
Category 1
Rated A or higher by S&P; AND .10% .325%
Rated A2 or higher by Moody's
________________________________________________________________
Category 2
Rated lower than A and equal
to or higher than BBB+ by S&P;
AND .125% .375%
Rated lower than A2 and equal
to or higher than
Baa1 by Moody's
________________________________________________________________
Category 3
Rated lower than BBB+ and
equal to or higher than BBB-
by S&P; .1875% .45%
AND
Rated lower than Baa1 and
equal to or higher than Baa3
by Moody's
________________________________________________________________
Category 4
Rated lower than BBB- by S&P; .25% 1.00%
OR
Rated lower than Baa3 by
Moody's
________________________________________________________________
UTILIZATION FEE (>50%) .0% .125%
* IF THE RATINGS ESTABLISHED BY MOODY'S AND S&P SHOULD FALL
WITHIN DIFFERENT CATEGORIES, THE APPLICABLE PERCENTAGE SHALL BE
DETERMINED BY REFERENCE TO THE NUMERICALLY LOWER CATEGORY.
** MARGIN OVER LIBOR.