Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Form 10-K for Fiscal Year Ended December 31, 1993 32 131K
2: EX-4.16B EX-4.16B Amendment Dated as of September 10, 1993 14 44K
3: EX-4.16C EX-4.16C Master Assignment & Acceptance Agreement 15 41K
4: EX-10.33A EX-10.33A Termination Agreements 6 14K
5: EX-10.53B EX-10.53B Amendment to 1992 Equity Incentive Plan 1 7K
6: EX-10.55 EX-10.55 AT&T Corporate Center Office Sublease 222 670K
7: EX-10.56 Material Contract 4 16K
8: EX-10.57 Material Contract 4 16K
9: EX-10.58 Material Contract 17 50K
10: EX-10.59 Material Contract 12 42K
11: EX-13 EX-13 1993 Annual Report - Portions Deemed Filed 32 118K
12: EX-21 EX-21 Subsidiaries 1 5K
EX-4.16B — EX-4.16B Amendment Dated as of September 10, 1993
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CONFORMED COPY
AMENDMENT dated as of September 10,
1993, to the Credit Agreement dated as
of March 27, 1992, as previously amended
(the "Credit Agreement"), among CHICAGO
AND NORTH WESTERN TRANSPORTATION
COMPANY, a Delaware corporation (the
"Borrower"), CHICAGO AND NORTH WESTERN
HOLDINGS CORP., a Delaware corporation
("Holdings"), the financial institutions
party thereto as lenders (the
"Lenders"), BANK OF MONTREAL, a Canadian
banking corporation, as issuing bank (in
such capacity, the "Issuing Bank"), the
Co-Agents named therein and CHEMICAL
BANK, as administrative agent for the
Lenders and the Issuing Bank (in such
capacity, the "Agent").
Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings assigned
to such terms in the Credit Agreement. The Borrower has
requested that the Lenders enter into this Agreement in
order to amend certain provisions of the Credit Agreement as
set forth herein. Simultaneously with the execution and
delivery of this Agreement, the parties hereto, together
with certain other financial institutions which were lenders
under the Credit Agreement prior to the Effective Time (as
defined in Section 5 hereof), are entering into a Master
Assignment and Acceptance Agreement dated as of the date
hereof (the "Master Assignment Agreement") which provides
for certain assignments resulting in the Lenders hereunder
being the only lenders under the Credit Agreement as of the
Effective Time. The Lenders have agreed to the requested
amendments to the Credit Agreement, subject to the terms and
conditions set forth herein. Accordingly, the parties
hereto agree as follows:
SECTION 1. Amendments to Article I. Effective as
of the Effective Time, Article I of the Credit Agreement is
hereby amended as follows:
(a) The definition of the term "Dividend Amount" set
forth in Article I of the Credit Agreement is hereby amended
to read in its entirety as follows:
"Dividend Amount" shall mean, at any time, an
amount equal to the sum of (a) the aggregate amount of
Designated Capital Expenditures and Designated Payments
(provided that the portion of any Designated Payment
used to pay any premium or penalty on account of the
prepayment, repurchase or redemption of Indebtedness
2
shall not be included in this calculation) made after
the Closing Date and prior to such time, plus (b) if
positive, 10% of the aggregate net income of Holdings
and its consolidated subsidiaries for the period from
and including October 1, 1993, to and including the end
of the most recent fiscal quarter of Holdings ended
prior to such time for which financial statements have
been delivered to the Agent, treated as a single
accounting period, computed in accordance with GAAP
consistently applied but excluding any non-cash
extraordinary or nonrecurring gains or losses, minus
(c) the sum of (i) the aggregate amount of dividends
(other than Designated Dividends) paid by Holdings
after the Closing Date and prior to such time, plus
(ii) the aggregate amount of Capital Expenditures made
in reliance upon clause (vi) of the proviso to Section
6.03 prior to such time.
(b) Article I of the Credit Agreement is hereby
amended to include the definitions set forth below, in the
appropriate alphabetic positions:
"Master Assignment Agreement" shall mean the
Master Assignment and Acceptance Agreement dated as of
September 10, 1993, among the Borrower, Holdings, the
financial institutions that were Lenders hereunder at
the time of execution and delivery thereof, the Issuing
Bank and the Agent.
"Special ABR Loan" means any Loan (or portion of a
Loan) assigned pursuant to the Master Assignment
Agreement that is outstanding at the time of such
assignment as an ABR Loan; provided that the term
"Special ABR Loan" shall not include any such Loan (or
portion of a Loan) after September 30, 1993, or any
earlier date on which the Borrower converts, pursuant
to Section 2.10, the Borrowing in which such Loan is
included.
"Special LIBOR Loan" means any Loan (or portion of
a Loan) assigned pursuant to the Master Assignment
Agreement that is outstanding at the time of such
assignment as a Eurodollar Loan; provided that the term
"Special LIBOR Loan" shall not include any such Loan
(or portion of a Loan) after October 15, 1993, or any
earlier date on which the Borrower converts, pursuant
to Section 2.10, the Borrowing in which such Loan is
included.
3
SECTION 2. Amendments to Article II. Effective
as of the Effective Time, Article II of the Credit Agreement
is hereby amended as follows:
(a) Section 2.05 of the Credit Agreement is amended to
reduce the rate of the Commitment Fee (i) from "1/2 of 1%
per annum" to "0.375% per annum" on the average daily unused
amount of the Revolving Credit Commitment of each Lender and
(ii) from "1% per annum" to "0.375% per annum" on the
average daily unused amount of the Standby Commitment of
each Lender.
(b) Section 2.06(a) of the Credit Agreement is amended
to delete clauses (i) and (ii) thereof and to substitute,
after the word "plus", the rate of "0.50%".
(c) Section 2.06(b) of the Credit Agreement is amended
to delete clauses (i) and (ii) thereof and to substitute,
after the word "plus", the rate of "1.625%".
(d) Section 2.06(c) of the Credit Agreement is hereby
amended to delete clauses (i) and (ii) thereof and to
substitute, after the word "plus", the rate of "1.50%".
(e) Section 2.06 of the Credit Agreement is hereby
amended to add an additional paragraph (e) thereto, as set
forth below:
(e) Notwithstanding the foregoing or any contrary
provision of this Agreement, (i) each Special LIBOR
Loan shall have an Interest Period commencing on the
date that such Special LIBOR Loan is assigned pursuant
to the Master Assignment Agreement and ending on
October 15, 1993 and (ii) each Special ABR Loan shall
have an Interest Period commencing on the date that
such Special ABR Loan is assigned pursuant to the
Master Assignment Agreement and ending on September 30,
1993. For purposes of paragraph (c) above, the
Adjusted LIBO Rate shall be determined for Special
LIBOR Loans for the Interest Period applicable thereto
as provided above, but, for all other purposes of this
Agreement, each Special LIBOR Loan and Special ABR Loan
will continue to constitute part of the same Borrowing
of which such Special LIBOR Loan or Special ABR Loan
was a part immediately prior to the effectiveness of
the assignments under the Master Assignment Agreement.
It is understood and agreed that the foregoing
arrangements are intended to facilitate the
transactions contemplated by the Master Assignment
Agreement and are temporary. It also is understood and
agreed that (i) the foregoing arrangements may result
4
in a higher or lower Adjusted LIBO Rate applicable to
Special LIBOR Loans than that applicable to the other
Eurodollar Loans included in the same Borrowing, (ii)
the foregoing arrangements will result in Special LIBOR
Loans and Special ABR Loans accruing interest from the
date that such Loans are assigned pursuant to the
Master Assignment Agreement whereas other Loans
included in the same Borrowing will have accrued
interest from an earlier date, and (iii) Lenders
holding Special LIBOR Loans shall be paid interest
thereon reflecting such higher or lower Adjusted LIBO
Rate, and Lenders holding Special LIBOR Loans and
Special ABR Loans will be paid interest thereon
accruing from the date that such Loans are assigned
pursuant to the Master Assignment Agreement,
notwithstanding that such payment would result in
payments of interest failing to be made pro rata in
accordance with Section 2.16. Each Lender further
agrees that it will not make any assignment of its
rights and obligations under this Agreement until
October 15, 1993.
(f) Section 2.07 of the Credit Agreement is hereby
amended to delete clauses (i) and (ii) thereof and to
substitute, after the word "plus", the rate of "2.50%".
(g) Section 2.21 of the Credit Agreement is hereby
amended to reduce the rate of the Letter of Credit Fee from
"2-1/2% per annum" to "1.50% per annum".
SECTION 3. Amendment to Section 6.03. Effective
as of the Effective Time, Section 6.03 of the Credit
Agreement is hereby amended to read in its entirety as set
forth below:
SECTION 6.03. Capital Expenditures. Permit
Capital Expenditures of Holdings on a consolidated
basis during any calendar year to be greater than the
amount set forth below for such year:
5
Calendar Year Amount
1992 $ 95,000,000
1993 $115,000,000
1994 $120,000,000
1995 $125,000,000
1996 $145,000,000
1997 $135,000,000
1998
and each year thereafter $145,000,000
provided, however, that (i) such limits shall not apply
to any Capital Expenditure made pursuant to the
Trackage Rights Agreement to maintain 100% of the Lines
at FRA Track Classification 5 (as such terms are
defined in the Trackage Rights Agreement) and financed
exclusively by the issuance of the junior subordinated
note referred to in Exhibit B thereto; (ii) to the
extent Capital Expenditures made in any year are less
than the amount set forth above opposite such year,
Holdings and its subsidiaries shall be permitted to
carry forward the unused amount to succeeding calendar
years; (iii) the aggregate amount of the limit may be
exceeded by $8,000,000 for expenditures directly
related to the Twin Cities Project; (iv) the aggregate
amount of the limit may be exceeded by $15,000,000 for
expenditures directly related to the Borrower's Cargill
project at Blair, Nebraska; (v) such limits shall not
apply to a Capital Expenditure if (A) the amount of
such Capital Expenditure does not exceed the amount of
Residual Equity Proceeds available for the making of
Capital Expenditures, (B) the Borrower notifies the
Agent prior to the making of such Capital Expenditure
that it is designating such Capital Expenditure as a
use of Residual Equity Proceeds (it being understood
that such Capital Expenditure shall reduce the amount
of such Residual Equity Proceeds available for other
purposes by the amount of such Capital Expenditure),
which notice shall specify the Capital Expenditure so
designated and the amount thereof and (C) such Capital
Expenditure shall not be deducted in calculating Excess
Cash Flow; (vi) such limits shall not apply to a
Capital Expenditure if (A) the amount of such Capital
Expenditure does not exceed the Dividend Amount at the
time such Capital Expenditure is made and (B) the
Borrower notifies the Agent prior to the making of such
Capital Expenditure that it is utilizing the Dividend
Amount to make such Capital Expenditure; and (vii)
Capital Expenditures may only be made by CNW and its
subsidiaries.
6
SECTION 4. Representations and Warranties. Each
of Holdings and the Borrower represents and warrants to each
of the Lenders that:
(a) as of the Effective Time, there exists no Default
or Event of Default;
(b) the representations and warranties set forth in
each Loan Document are true and correct in all material
respects at and as of the Effective Time with the same
effect as though made at and as of the Effective Time,
except to the extent such representations and warranties
expressly relate to an earlier date; and
(c) as of the Effective Time, each of Holdings, the
Borrower and each other subsidiary of Holdings that is a
party to any Loan Document is in compliance with all of the
terms and provisions set forth in the Credit Agreement and
in each other Loan Document on its part to be observed or
performed.
SECTION 5. Conditions of Effectiveness. This
Agreement, including the amendments to the Credit Agreement
set forth above, shall become effective upon the
satisfaction of the following conditions:
(a) The Agent (or its counsel) shall have received
counterparts of this Agreement which, when taken together,
bear the signatures of Holdings, the Borrower, the Issuing
Bank and each Lender.
(b) The assignments to be made pursuant to the Master
Assignment Agreement shall have become effective in
accordance with the terms of the Master Assignment
Agreement.
(c) The Agent shall have received a duly executed
Revolving Credit Note, Standby Note and Term Note, complying
with the provisions of Section 2.04 of the Credit Agreement,
for each Lender that accepted an assignment of any
Commitments or Loans pursuant to the Master Assignment
Agreement, reflecting such assignment.
(d) The Agent shall have received (i) for the account
of each Lender, a fee equal to 0.25% of the sum of such
Lender's Loans, Letter of Credit Exposure and unused
Commitments (calculated as of the date of effectiveness of
this Agreement, prior to giving effect to the assignments
contemplated by the Master Assignment Agreement, provided
that if such Lender reduced the sum of its Loans, Letter of
Credit Exposure and unused Commitments pursuant to
7
assignments under the Master Assignment Agreement, the fee
payable to such Lender pursuant to this clause shall be
calculated on such sum after giving effect to such
assignments), (ii) for the account of each Lender that
accepted an assignment of any Commitments or Loans pursuant
to the Master Assignment Agreement, a fee equal to 0.40% of
the sum of the Loans, Letter of Credit Exposure and unused
Commitments so assigned to such Lender, and (iii)
reimbursement of any out-of-pocket expenses incurred by the
Agent in connection with the preparation, execution and
delivery of this Agreement and the Master Assignment
Agreement and the transactions contemplated hereby and
thereby (to the extent that notice thereof is given to the
Borrower prior to the date of effectiveness of this
Agreement).
(e) The Agent shall have received (i) a certificate,
dated the date of effectiveness of this Agreement and signed
by a Financial Officer of Holdings and the Borrower,
confirming the representations made in Section 4 of this
Agreement and (ii) the favorable written opinion of James P.
Daley, Esq., general counsel for Holdings and the Borrower,
dated the date of effectiveness of this Agreement, addressed
to the Lenders and in the form attached as Exhibit A to this
Agreement. Each of Holdings and the Borrower hereby directs
its general counsel to deliver the opinion referred to in
clause (ii) above, it being understood that the Lenders will
and may rely thereon.
The Agent will notify the Borrower, the Issuing Bank and the
Lenders when the foregoing conditions have been satisfied.
The time at which such conditions are satisfied, as
reasonably determined by the Agent, is referred to herein as
the "Effective Time". The Agent's determination of the
Effective Time shall be conclusive absent manifest error.
SECTION 6. APPLICABLE LAW. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 8. Agreement. Except as expressly
amended hereby, the Credit Agreement shall continue in full
force and effect in accordance with the provisions thereof
on the date hereof. Without limiting the generality of the
foregoing, it is acknowledged and agreed that the amendments
to the Credit Agreement contemplated hereby shall not affect
8
the calculation or amount of any interest or Fees accrued
prior to the Effective Time.
SECTION 9. Expenses. The Borrower shall pay all
reasonable out-of-pocket expenses incurred by the Agent in
connection with this Agreement or the Master Assignment
Agreement.
SECTION 10. Headings. The headings of this
Agreement are for the purposes of reference only and shall
not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, Holdings, the Borrower, the
Agent, the Issuing Bank and the Lenders have caused this
Agreement to be duly executed by their duly authorized
officers, all as of the date first above written.
CHICAGO AND NORTH WESTERN
TRANSPORTATION COMPANY,
by
/s/ John E. Voldseth
Name: John E. Voldseth
Title: Vice-President
Finance
CHICAGO AND NORTH WESTERN
HOLDINGS CORP.,
by
/s/ John E. Voldseth
Name: John E. Voldseth
Title: Vice-President
Finance
CHEMICAL BANK,
by
/s/ Julie A. Soper
Name: Julie A. Soper
Title: Vice President
9
BANK OF MONTREAL,
by
/s/ Christine M. Tierney
Name: Christine M. Tierney
Title: Director
BANQUE PARIBAS,
by
/s/ Peter Toal
Name: Peter Toal
Title: Regional General
Manager
by
/s/ S. M. Heiner
Name: S. M. Heiner
Title: Assistant Vice
President
THE CHASE MANHATTAN BANK, N.A.,
by
/s/ Francis M. Cox, III
Name: Francis M. Cox, III
Title: Vice President
CONTINENTAL BANK N.A.,
by
/s/ Paul R. Frey
Name: Paul R. Frey
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ Gerald F. Mackin
Name: Gerald F. Mackin
Title: Vice President
10
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.,
by
/s/ Richard E. Stahl
Name: Richard E. Stahl
Title: Senior Vice President &
Joint General Manager
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
by
/s/ Patricia DelGrande
Name: Patricia DelGrande
Title: Vice President
NATIONAL WESTMINSTER BANK USA,
by
/s/ Kathleen Weiss, VP
Name: Kathleen Weiss
Title: Vice President
ALLSTATE LIFE INSURANCE COMPANY,
by
/s/ Mark D. Senkpiel
Name: Mark D. Senkpiel
Title: Director
by
/s/ Gary W. Fridley
Name: Gary W. Fridley
Title: Authorized Signatory
ANCHOR NATIONAL LIFE INSURANCE
COMPANY,
by
/s/ Michael J. Campbell
Name: Michael J. Campbell
Title: Director, Corporate
Finance Sunamerica
Investments, Inc.
11
THE FIRST NATIONAL BANK OF BOSTON,
by
/s/ Dexter Freeman
Name: Dexter Freeman
Title: Vice President
THE BANK OF NEW YORK,
by
/s/ Charlotte Sohn
Name: Charlotte Sohn
Title: Assistant Vice
President
CANADIAN IMPERIAL BANK OF COMMERCE,
by
/s/ John W. Kunkle
Name: John W. Kunkle
Title: Agent
CAISSE NATIONALE DE CREDIT
AGRICOLE,
by
/s/ David Bouhl
Name: David Bouhl, F.V.P.
Title: Head of Corporate
Banking Chicago
CREDIT SUISSE,
by
/s/ Harry R. Olsen
Name: Harry R. Olsen
Title: Member of Senior
Management
by
/s/ William P. Murray
Name: William P. Murray
Title: Member of Senior
Management
12
DRESDNER BANK AG CHICAGO BRANCH,
by
/s/ Brian Brodeur
Name: Brian Brodeur
Title: Vice President
by
/s/ E. Ronald Holder
Name: E. Ronald Holder
Title: Senior Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
by
/s/ Akira Suzuki
Name: Akira Suzuki
Title: Chief Manager
THE NIPPON CREDIT BANK, LTD.,
by
/s/ Hideaki Mori
Name: Hideaki Mori
Title: Vice President &
Manager
THE NORTHERN TRUST COMPANY,
by
/s/ J. Mark Berry
Name: J. Mark Berry
Title: Vice President
PROSPECT STREET SENIOR PORTFOLIO,
L.P.,
by PROSPECT STREET SENIOR LOAN
CORP., as managing general
partner of PROSPECT STREET
SENIOR PORTFOLIO, L.P.,
by
/s/ Preston I. Carnes, Jr.
Name: Preston I. Carnes, Jr.
Title: Vice President
13
THE TORONTO-DOMINION BANK,
by
/s/ William H. Hoffman
Name: William H. Hoffman
Title: Director
THE TRAVELERS INSURANCE COMPANY,
by
/s/ Paul T. Quistberg
Name: Paul T. Quistberg
Title: Assistant Investment
Officer
THE TRAVELERS INDEMNITY COMPANY,
by
/s/ Paul T. Quistberg
Name: Paul T. Quistberg
Title: Assistant Investment
Officer
PROTECTIVE LIFE INSURANCE COMPANY
(NATIONAL DEPOSIT LIFE),
by
/s/ Mark K. Okada
Name: Mark K. Okada
Title: Principal Protective
Asset Management Co.
PROTECTIVE LIFE INSURANCE COMPANY,
by
/s/ Richard Bielen
Name: Richard Bielen
Title: Vice President,
Investments
14
CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., as Portfolio
Advisor to:
RESTRUCTURED OBLIGATIONS BACKED BY
SENIOR ASSETS, B.V. (ROSA)
by
/s/ Stephen M. Alfieri
Name: Stephen M. Alfieri
Title: Vice President
CHANCELLOR SENIOR SECURED
MANAGEMENT, INC., as Portfolio
Advisor to:
KEYPORT LIFE INSURANCE CO.,
by
/s/ Stephen M. Alfieri
Name: Stephen M. Alfieri
Title: Vice President
SUN LIFE INSURANCE COMPANY
OF AMERICA
by
/s/ Michael J. Campbell
Name: Michael J. Campbell
Title: Director, Corporate
Finance Sunamerica
Investments, Inc.
INDUSTRIAL BANK OF JAPAN, LTD.,
by
/s/ Masaaki Takeda
Name: Masaaki Takeda
Title: General Manager
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 3/21/94 | | | | | | | None on these Dates |
| For Period End: | | 12/31/93 |
| | 10/15/93 | | 2 | | 4 |
| | 10/1/93 | | 2 |
| | 9/30/93 | | 2 | | 3 |
| | 9/10/93 | | 1 | | 2 |
| | 3/27/92 | | 1 |
| List all Filings |
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