AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 4, 1997.
REGISTRATION NO. 333-
COMMONWEALTH OF VIRGINIA 4011 62-1051971
(STATE OR OTHER (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
JURISDICTION CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
OF INCORPORATION OR
ORGANIZATION)
ONE JAMES CENTER
901 EAST CARY STREET
RICHMOND, VIRGINIA 23219
(804) 782-1400
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(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CALCULATION OF REGISTRATION FEE
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE(2)(3)
- ----------------------------------------------------------------------------------
7.05% Debentures Due
2002.................. $ 350,000,000 100% $ 350,000,000
7.25% Debentures Due
2004.................. $ 300,000,000 100% $ 300,000,000
7.45% Debentures Due
2007.................. $ 450,000,000 100% $ 450,000,000
7.90% Debentures Due
2017.................. $ 400,000,000 100% $ 400,000,000
7.95% Debentures Due
2027.................. $ 500,000,000 100% $ 500,000,000
6.95% Debentures Due
2027.................. $ 100,000,000 100% $ 100,000,000
7.25% Debentures Due
2027.................. $ 250,000,000 100% $ 250,000,000
8.30% Debentures Due
2032.................. $ 150,000,000 100% $ 150,000,000
-------------- --------------
Total................ $2,500,000,000 100% $2,500,000,000 $757,576
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + |
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED JUNE 4, 1997
PRELIMINARY PROSPECTUS
CSX CORPORATION
OFFERS TO EXCHANGE
ALL OUTSTANDING REGISTERED
7.05% DEBENTURES DUE 2002 FOR 7.05% DEBENTURES DUE 2002
7.25% DEBENTURES DUE 2004 FOR 7.25% DEBENTURES DUE 2004
7.45% DEBENTURES DUE 2007 FOR 7.45% DEBENTURES DUE 2007
7.90% DEBENTURES DUE 2017 FOR 7.90% DEBENTURES DUE 2017
7.95% DEBENTURES DUE 2027 FOR 7.95% DEBENTURES DUE 2027
6.95% DEBENTURES DUE 2027 FOR 6.95% DEBENTURES DUE 2027
7.25% DEBENTURES DUE 2027 FOR 7.25% DEBENTURES DUE 2027
8.30% DEBENTURES DUE 2032 FOR 8.30% DEBENTURES DUE 2032
----------
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THE EXCHANGE OFFERS
WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON , 1997 UNLESS EXTENDED.
CSX Corporation, a Virginia corporation (the "Company"), hereby offers (the "Exchange Offers"), upon the terms and subject to the conditions set forth in this Prospectus (as the same may be amended or supplemented from time to time, this "Prospectus") and the accompanying Letter of Transmittal (the "Letter of Transmittal"), to exchange its outstanding:
. 7.05% Debentures Due 2002 (the "Old 2002 Debentures"), of which an aggregate of $350,000,000 in principal amount is outstanding as of the date hereof, for an equal principal amount of newly issued 7.05% Debentures Due 2002 (the "New 2002 Debentures"),
. 7.25% Debentures Due 2004 (the "Old 2004 Debentures"), of which an aggregate of $300,000,000 in principal amount is outstanding as of the date hereof, for an equal principal amount of newly issued 7.25% Debentures Due 2004 (the "New 2004 Debentures"),
. 7.45% Debentures Due 2007 (the "Old 2007 Debentures"), of which an aggregate of $450,000,000 in principal amount is outstanding as of the date hereof, for an equal principal amount of newly issued 7.45% Debentures Due 2007 (the "New 2007 Debentures"),
. 7.90% Debentures Due 2017 (the "Old 2017 Debentures"), of which an aggregate of $400,000,000 in principal amount is outstanding as of the date hereof, for an equal principal amount of newly issued 7.90% Debentures Due 2017 (the "New 2017 Debentures"),
. 7.95% Debentures Due 2027 (the "Old 7.95% 2027 Debentures"), of which an aggregate of $500,000,000 in principal amount is outstanding as of the date hereof, for an equal principal amount of newly issued 7.95% Debentures Due 2027 (the "New 7.95% 2027 Debentures"),
. 6.95% Debentures Due 2027 (the "Old 6.95% 2027 Debentures"), of which an aggregate of $100,000,000 in principal amount is outstanding as of the date hereof, for an equal principal amount of newly issued 6.95% Debentures Due 2027 (the "New 6.95% 2027 Debentures"),
. 7.25% Debentures Due 2027 (the "Old 7.25% 2027 Debentures"), of which an aggregate of $250,000,000 in principal amount is outstanding as of the date hereof, for an equal principal amount of newly issued 7.25% Debentures Due 2027 (the "New 7.25% 2027 Debentures"), and
. 8.30% Debentures Due 2032 (the "Old 2032 Debentures"), of which an aggregate of $150,000,000 in principal amount is outstanding as of the date hereof, for an equal principal amount of newly issued 8.30% Debentures Due 2032 (the "New 2032 Debentures").
The form and terms of the New 2002 Debentures, New 2004 Debentures, New 2007
Debentures, New 2017 Debentures, New 7.95% 2027 Debentures, New 6.95% 2027
Debentures, New 7.25% 2027 Debentures, and New 2032 Debentures (collectively,
the "New Debentures") will be the same as the form and terms of the Old 2002
Debentures, Old 2004
(Continued)
This Prospectus, together with the Letter of Transmittal, is first being sent on or about , 1997 to all Holders of Old Debentures (as defined below) known to the Company.
SEE "RISK FACTORS" COMMENCING ON PAGE 10 FOR CERTAIN INFORMATION THAT SHOULD BE CONSIDERED BY HOLDERS IN DECIDING WHETHER TO TENDER OLD DEBENTURES IN THE EXCHANGE OFFERS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1997
The map below shows the proposed post-Transaction CSXT route system, as defined herein. See "The Company--Joint CSX/NSC Acquisition of Conrail."
(MAP)
(Cover page continued)
Debentures, Old 2007 Debentures, Old 2017 Debentures, Old 7.95% 2027 Debentures, Old 6.95% 2027 Debentures, Old 7.25% 2027 Debentures, and Old 2032 Debentures (collectively, the "Old Debentures"), respectively, except that (i) the New Debentures will be registered under the Securities Act of 1933, as amended (the "Securities Act"), and hence will not bear legends restricting the transfer thereof and (ii) the holders of the New Debentures will not be entitled to certain rights of holders of the Old Debentures under the Registration Rights Agreement (as defined herein), which rights will terminate upon the consummation of the Exchange Offers. The New 2002 Debentures, New 2004 Debentures, New 2007 Debentures, New 2017 Debentures, New 7.95% 2027 Debentures, New 6.95% 2027 Debentures, New 7.25% 2027 Debentures, and New 2032 Debentures will evidence the same debt as the Old 2002 Debentures, Old 2004 Debentures, Old 2007 Debentures, Old 2017 Debentures, Old 7.95% 2027 Debentures, Old 6.95% 2027 Debentures, Old 7.25% 2027 Debentures, and Old 2032 Debentures, respectively, and will be entitled to the benefits of an indenture, dated as of August 1, 1990 and supplemented and amended by a First Supplemental Indenture dated as of June 15, 1991 and a Second Supplemental Indenture dated as of May 6, 1997 (as supplemented and amended, the "Indenture"), governing the Old Debentures and the New Debentures. The Indenture provides for the issuance of both the New Debentures and the Old Debentures. The New 2002 Debentures and the Old 2002 Debentures are sometimes referred to herein collectively as the "2002 Debentures"; the New 2004 Debentures and the Old 2004 Debentures are sometimes referred to herein collectively as the "2004 Debentures"; the New 2007 Debentures and the Old 2007 Debentures are sometimes referred to herein collectively as the "2007 Debentures"; the New 2017 Debentures and the Old 2017 Debentures are sometimes referred to herein collectively as the "2017 Debentures"; the New 7.95% 2027 Debentures and the Old 7.95% 2027 Debentures are sometimes referred to herein collectively as the "7.95% 2027 Debentures"; the New 6.95% 2027 Debentures and the Old 6.95% 2027 Debentures are sometimes referred to herein collectively as the "6.95% 2027 Debentures"; the New 7.25% 2027 Debentures and the Old 7.25% 2027 Debentures are sometimes referred to herein collectively as the "7.25% 2027 Debentures"; the Old 2032 Debentures and the New 2032 Debentures are sometimes referred to herein collectively as the "2032 Debentures"; and the 2002 Debentures, the 2004 Debentures, the 2007 Debentures, the 2017 Debentures, the 7.95% 2027 Debentures, the 6.95% 2027 Debentures, the 7.25% 2027 Debentures, and the 2032 Debentures are sometimes referred to herein collectively as the "Debentures."
Interest on each series of the Debentures will be paid semiannually on May 1 and November 1 of each year, commencing on November 1, 1997. The 2032 Debentures are not redeemable prior to May 1, 2007. On or after that date, the 2032 Debentures will be redeemable at the option of the Company, as a whole or in part, at any time on at least 30 days' notice, at the respective prices indicated herein. None of the other series of Debentures are redeemable at the Company's option prior to maturity. Each holder of the 6.95% 2027 Debentures may require the Company to repurchase all or a portion of such series owned by such holder on May 1, 2002 at a purchase price equal to 100% of the principal amount thereof plus accrued interest thereon. Each holder of the 7.25% 2027 Debentures may require the Company to repurchase all or a portion of such series owned by such holder on May 1, 2005 at a purchase price equal to 100% of the principal amount thereof. None of the series of Debentures is subject to any sinking fund. See "Description of New Debentures."
Prior to the Exchange Offers, there has been no public market for the Old Debentures. The Company does not intend to list the New Debentures on any securities exchange or to seek approval for quotation through any automated quotation system. There can be no assurance that an active market for the New Debentures will develop. To the extent that a market for the New Debentures does develop, the market value of the New Debentures will depend on market conditions (such as yields on alternative investments), general economic conditions, the Company's financial condition and other conditions. Such conditions might cause the New Debentures, to the extent that they are actively traded, to trade at a significant discount from face value.
Except as discussed below, the New Debentures will be available only in book-entry form. The Company expects that the New Debentures issued pursuant to the Exchange Offers will be issued in the form of one or more fully registered global debentures that will be deposited with, or on behalf of, The Depository Trust Company ("DTC") and registered in its name or in the name of Cede & Co., as its nominee. Beneficial interests
in the global debentures representing the New Debentures will be shown on, and transfers thereof will be effected only through, records maintained by DTC and its participants. After the initial issuance of such global debentures, New Debentures in certificated form will be issued in exchange for the global debentures only in accordance with the terms and conditions set forth in the Indenture. See "Description of the New Debentures--Book-Entry, Delivery and Form" and "Description of the New Debentures--Certificated Debentures."
The Company will accept for exchange any and all Old Debentures which are properly tendered in the Exchange Offers prior to 5:00 p.m., New York City time, on , 1997 (if and as extended, the "Expiration Date"). Tenders of Old Debentures may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date. The Exchange Offers are not conditioned upon any minimum principal amount of Old Debentures being tendered for exchange. Old Debentures may be tendered only in integral multiples of $1,000. The Company may terminate the Exchange Offers in certain circumstances described herein. See "The Exchange Offers." In the event the Company terminates any or all of the Exchange Offers and does not accept for exchange any of the Old 2002 Debentures, Old 2004 Debentures, Old 2007 Debentures, Old 2017 Debentures, Old 7.95% 2027 Debentures, Old 6.95% 2027 Debentures, Old 7.25% 2027 Debentures, or Old 2032 Debentures, as the case may be, the Company will promptly return all previously tendered Old 2002 Debentures, Old 2004 Debentures, Old 2007 Debentures, Old 2017 Debentures, Old 7.95% 2027 Debentures, Old 6.95% 2027 Debentures, Old 7.25% 2027 Debentures, and Old 2032 Debentures, as the case may be, to the holders thereof.
Based on a previous interpretation by the staff of the Securities and Exchange Commission (the "Commission") set forth in no-action letters to third parties, the Company believes that the New Debentures issued pursuant to the Exchange Offers in exchange for Old Debentures may be offered for resale, resold, and otherwise transferred by a holder thereof (other than (i) a broker-dealer who purchases such New Debentures directly from the Company to resell pursuant to Rule 144A or any other available exemption under the Securities Act or (ii) a person that is an affiliate of the Company (within the meaning of Rule 405 under the Securities Act)) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that the holder is acquiring the New Debentures in such holder's ordinary course of business and is not participating, and has no arrangement or understanding with any person to participate, in the distribution of the New Debentures. Holders of Old Debentures wishing to accept any or all of the Exchange Offers must represent to the Company that such conditions have been met.
Each broker-dealer that receives New Debentures for its own account pursuant to any or all of the Exchange Offers must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Debentures. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter," within the meaning of the Securities Act, in connection with the resale of New Debentures received in exchange for Old Debentures where such Old Debentures were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date, it will make this Prospectus available to any broker-dealer for use in connection with any such resale. See "Plan of Distribution."
The Company believes that none of the registered holders of the Old Debentures is an affiliate (as such term is defined in Rule 405 under the Securities Act) of the Company. The Company has not entered into any arrangement or understanding with any person to distribute the New Debentures to be received in the Exchange Offers, and to the best of the Company's information and belief, each person participating in any or all of the Exchange Offers is acquiring the New Debentures in the ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the New Debentures to be received in any or all of the Exchange Offers.
The Company will not receive any proceeds from the Exchange Offers. The Company has agreed to bear the expenses of the Exchange Offers. No underwriter is being used in connection with the Exchange Offers.
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, files reports, proxy statements and other information with the Commission. Such reports, proxy statements and other information may be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's Regional Offices in New York (Seven World Trade Center, 13th Floor, New York, New York 10048), and Chicago (Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661). Copies of these materials may be obtained from the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, the Commission maintains a site on the World Wide Web at http://www.sec.gov that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission. Reports, proxy statements and other information concerning the Company may also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005, where the Company's common stock is listed.
This Prospectus constitutes a part of a Registration Statement on Form S-4, as amended (the "Registration Statement"), filed by the Company with the Commission under the Securities Act. This Prospectus omits certain of the information contained in the Registration Statement in accordance with the rules and regulations of the Commission. Reference is hereby made to the Registration Statement and related exhibits for further information with respect to the Company and the Debentures. Statements contained herein concerning the provisions of any documents are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December 27, 1996, the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 28, 1997 and the Company's Current Report on Form 8-K dated May 23, 1997, have been filed by the Company with the Commission and are incorporated herein by reference. In addition, there is incorporated herein by reference the CSX/NSC Agreement (as defined herein), which has been filed by the Company with the Commission as an exhibit to Amendment No. 24 to the Company's Tender Offer Statement on Schedule 14D-1, filed on April 11, 1997.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this
Prospectus and prior to the termination of any offering of securities made
hereby shall be deemed to be incorporated by reference into this Prospectus
and to be a part of this Prospectus from the respective dates of filing of
such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement or document so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Prospectus. As used herein, the terms "Prospectus" and
"herein" mean this Prospectus, including the documents incorporated or deemed
incorporated by reference, as the same may be amended, supplemented or
otherwise modified from time to time. Statements contained in this Prospectus
as to the contents of any contract or other document referred to herein do not
purport to be complete and are qualified in all respects by reference to all
of the provisions of such contract or other document.
The Company will furnish without charge to each person to whom this Prospectus is delivered, upon written or oral request of such person, a copy of any and all of the documents described above that are incorporated by reference herein other than exhibits to such documents which are not specifically incorporated by reference in such documents. Written or telephone requests should be directed to: Alan A. Rudnick, Vice President--General
Counsel and Corporate Secretary, CSX Corporation, One James Center, 901 East Cary Street, Richmond, Virginia 23219, telephone number (804) 782-1400.
IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE
MADE BY , 1997.
SUMMARY
The following summary is qualified in its entirety by the more detailed information and financial statements, including the notes thereto, appearing elsewhere in this Prospectus or incorporated herein by reference.
THE EXCHANGE
THE EXCHANGE OFFERS............. The Company is offering to exchange $1,000
principal amount of New 2002 Debentures, New
2004 Debentures, New 2007 Debentures, New
2017 Debentures, New 7.95% 2027 Debentures,
New 6.95% 2027 Debentures, New 7.25% 2027 De-
bentures, and New 2032 Debentures, respec-
tively, for each $1,000 principal amount of
Old 2002 Debentures, Old 2004 Debentures, Old
2007 Debentures, Old 2017 Debentures, Old
7.95% 2027 Debentures, Old 6.95% 2027 Deben-
tures, Old 7.25% 2027 Debentures, and Old
2032 Debentures, respectively, that are prop-
erly tendered and accepted. The Company will
issue the New 2002 Debentures, New 2004 De-
bentures, New 2007 Debentures, New 2017 De-
bentures, New 7.95% 2027 Debentures, New
6.95% 2027 Debentures, New 7.25% 2027 Deben-
tures, and New 2032 Debentures on or promptly
after the Expiration Date. There is
$350,000,000 aggregate principal amount of
the Old 2002 Debentures outstanding,
$300,000,000 aggregate principal amount of
the Old 2004 Debentures outstanding,
$450,000,000 aggregate principal amount of
the Old 2007 Debentures outstanding,
$400,000,000 aggregate principal amount of
the Old 2017 Debentures outstanding,
$500,000,000 aggregate principal amount of
the Old 7.95% 2027 Debentures outstanding,
$100,000,000 aggregate principal amount of
the Old 6.95% 2027 Debentures outstanding,
$250,000,000 aggregate principal amount of
the Old 7.25% 2027 Debentures outstanding,
and $150,000,000 aggregate principal amount
of the Old 2032 Debentures outstanding. See
"The Exchange Offers."
Based on an interpretation of the staff of
the Commission set forth in no-action letters
issued to third parties, the Company believes
that New Debentures issued pursuant to the
Exchange Offers in exchange for Old Deben-
tures may be offered for resale, resold and
otherwise transferred by any holder thereof
(other than (i) a broker-dealer who purchases
such New Debentures directly from the Company
to resell pursuant to Rule 144A or any other
available exemption under the Securities Act
or (ii) any such holder which is an "affili-
ate" of the Company within the meaning of
Rule 405 under the Securities Act) without
compliance with the registration and prospec-
tus delivery provisions of the Securities
Act, provided that such New Debentures are
acquired in the ordinary course of such hold-
er's business and that such holder has no ar-
rangement or
4
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understanding with any person to participate
in the distribution of such New Debentures.
In the event that the Company's belief is in-
accurate, holders of New Debentures who
transfer New Debentures in violation of the
prospectus delivery provisions of the Securi-
ties Act and without an exemption from regis-
tration thereunder may incur liability there-
under. The Company does not assume, or indem-
nify holders against, such liability. The Ex-
change Offers are not being made to, nor will
the Company accept surrenders for exchange
from, holders of Old Debentures (i) in any
jurisdiction in which the Exchange Offers or
the acceptance thereof would not be in com-
pliance with the securities or blue sky laws
of such jurisdiction or (ii) if any holder is
engaged or intends to engage in a distribu-
tion of New Debentures. Each broker-dealer
that receives New Debentures for its own ac-
count in exchange for Old Debentures, where
such Old Debentures were acquired by such
broker-dealer as a result of market-making
activities or other trading activities, must
acknowledge that it will deliver a prospectus
meeting the requirements of the Securities
Act in connection with any resale of such New
Debentures. See "Plan of Distribution."
EXPIRATION DATE................. The Exchange Offers will expire at 5:00 p.m.,
New York City time, on , 1997, unless any
or all Exchange Offers are extended, in which
case the term "Expiration Date" shall mean,
with respect to each Exchange Offer, the lat-
est date and time to which such Exchange Of-
fer is extended. The Company will accept for
exchange any and all Old Debentures which are
properly tendered in the Exchange Offers
prior to 5:00 p.m., New York City time, on
the Expiration Date. The New Debentures is-
sued pursuant to the Exchange Offers will be
delivered on or promptly after the Expiration
Date.
CONDITIONS TO THE EXCHANGE
OFFERS......................... The Exchange Offers are not conditioned on
any minimum principal amount of Old Deben-
tures being tendered for exchange. The Com-
pany may terminate the Exchange Offers if it
determines that its ability to proceed with
any or all of the Exchange Offers could be
materially impaired due to any legal or gov-
ernmental action, any new law, statute, rule
or regulation, any interpretation by the
staff of the Commission of any existing law,
statute, rule or regulation or the failure to
obtain any necessary approvals of governmen-
tal agencies or holders of the Old Deben-
tures. The Company does not expect any of the
foregoing conditions to occur, although there
can be no assurances any such conditions will
not occur. The Exchange Offers are subject to
certain other customary conditions, each of
which may be waived by the Company. See "The
Exchange Offers--Certain Conditions to the
Exchange Offers."
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PROCEDURES FOR TENDERING OLD
DEBENTURES..................... Each holder of Old Debentures wishing to ac-
cept any or all of the Exchange Offers must
complete, sign and date the Letter of Trans-
mittal, or a facsimile thereof, in accordance
with the instructions contained herein and
therein, and mail or otherwise deliver such
Letter of Transmittal, or such facsimile, to-
gether with such Old Debentures and any other
required documentation to The Chase Manhattan
Bank, as Exchange Agent, at the address set
forth herein. By executing the Letter of
Transmittal or by transmitting an Agent's
Message (as defined below) in lieu thereof,
each holder will represent to the Company
that, among other things, the New Debentures
acquired pursuant to the Exchange Offers are
being obtained in the ordinary course of
business of the person receiving such New De-
bentures, such person does not have an ar-
rangement or understanding with any person to
participate in the distribution of such New
Debentures and that neither the holder nor
any such other person is an "affiliate," as
defined in Rule 405 under the Securities Act,
of the Company. Certain brokers, dealers,
commercial banks, trust companies and other
nominees may also effect tenders by book-en-
try transfer, including an Agent's Message in
lieu of a Letter of Transmittal.
BENEFICIAL OWNERS............... Any beneficial owner whose Old Debentures are
registered in the name of a broker, dealer,
commercial bank, trust company or other nomi-
nee and who wishes to tender such Old Deben-
tures in any or all of the Exchange Offers
should contact such registered holder
promptly and instruct such registered holder
to tender on such beneficial owner's behalf.
If such beneficial owner wishes to tender on
such owner's own behalf, such owner must,
prior to completing and executing the Letter
of Transmittal and delivering such owner's
Old Debentures, either make appropriate ar-
rangements to register ownership of the Old
Debentures in such owner's name or obtain a
properly completed bond power from the regis-
tered holder. The transfer of registered own-
ership may take considerable time and may not
be able to be completed prior to the Expira-
tion Date.
GUARANTEED DELIVERY
PROCEDURES..................... Holders of Old Debentures who wish to tender
their Old Debentures and who cannot deliver
their Old Debentures or the Letter of Trans-
mittal to The Chase Manhattan Bank, as Ex-
change Agent, prior to the Expiration Date,
or the procedures for book-entry transfer
cannot be completed on a timely basis, must
tender their Old Debentures according to the
guaranteed delivery procedures set forth in
"The Exchange Offers--Guaranteed Delivery
Procedures."
WITHDRAWAL RIGHTS............... Tenders of Old Debentures may be withdrawn at
any time prior to 5:00 p.m., New York City
time, on the Expiration Date.
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CERTAIN FEDERAL INCOME TAX
CONSEQUENCES................... For a discussion of certain federal income
tax consequences relating to the exchange of
New Debentures for Old Debentures, see "Cer-
tain Federal Income Tax Consequences of Par-
ticipation in the Exchange Offers."
EXCHANGE AGENT.................. The Chase Manhattan Bank is the Exchange
Agent. Its telephone number is (212) 946-
3068. The address of the Exchange Agent is
set forth in "The Exchange Offers--Exchange
Agent." The Chase Manhattan Bank also serves
as trustee under the Indenture.
SHELF REGISTRATION STATEMENT.... Under certain circumstances described in the
Registration Rights Agreement (as defined be-
low), certain holders of Debentures (includ-
ing holders who are not permitted to partici-
pate in the Exchange Offers or who may not
freely resell New Debentures received in the
Exchange Offers) may require the Company to
file, and use its best efforts to cause to
become effective, a shelf registration state-
ment (the "Shelf Registration Statement") un-
der the Securities Act, which would cover re-
sales of Debentures by such holders. See "De-
scription of the New Debentures--Registration
Rights Agreement."
|
SUMMARY DESCRIPTION OF THE NEW DEBENTURES
The terms of the New Debentures and the Old Debentures are identical in all material respects, except for certain transfer restrictions and registration rights relating to the Old Debentures. Whenever defined terms of the Indenture not otherwise defined herein are referred to, such defined terms are incorporated herein by reference. In the event that (i) by November 2, 1997 (or November 4, 1997 with respect to the Old 2032 Debentures), neither the Registration Statement of which this Prospectus is a part (sometimes referred to herein as the "Exchange Offer Registration Statement") is declared effective nor (if the Exchange Offers are not permitted as described above) the Shelf Registration Statement is filed with the Commission, or (ii) by December 2, 1997 (or December 4, 1997 with respect to the Old 2032 Debentures) , one or more of the Exchange Offers with respect to any series of Debentures is not consummated or the Shelf Registration Statement is not declared effective with respect thereto (each such event referred to in clauses (i) or (ii), a "Registration Default"), interest will accrue on the applicable Old Debentures (in addition to stated interest on such Old Debentures) from and including the next day following each such Registration Default. In each case such additional interest (the "Special Interest") will be payable in cash semiannually in arrears each May 1 and November 1, at a rate per annum equal to 0.25% of the principal amount of such Old Debentures for each such Registration Default. The aggregate amount of Special Interest payable pursuant to the above provisions will in no event exceed 0.25% per annum of the principal amount of such Old Debentures. Upon (a) the effectiveness of the Exchange Offer Registration Statement or the filing of the Shelf Registration Statement after the date set forth in clause (i) above or (b) the consummation of the Exchange Offer for such Old Debentures or the effectiveness of a Shelf Registration Statement, as the case may be, after the date set forth in clause (ii) above, the Special Interest payable on such Old Debentures as a result of the applicable Registration Default will cease to accrue.
The New Debentures will bear interest from the most recent date to which interest has been paid on the Old Debentures or, if no interest has been paid on the Old Debentures, from May 1, 1997. Accordingly, registered
holders of New Debentures on the relevant record date for the first interest payment date following the consummation of the Exchange Offers will receive interest accruing from the most recent date to which interest has been paid on the Old Debentures or, if no interest has been paid, from May 1, 1997. Old Debentures accepted for exchange will cease to accrue interest from and after the date of consummation of the Exchange Offers. Holders whose Old Debentures are accepted for exchange will not receive any payment in respect of interest on such Old Debentures otherwise payable on any interest payment date, the record date for which occurs on or after consummation of the Exchange Offers.
THE NEW DEBENTURES
NEW DEBENTURES OFFERED.......... $350,000,000 principal amount of 7.05% Deben-
tures Due 2002, $300,000,000 principal amount
of 7.25% Debentures Due 2004, $450,000,000
principal amount of 7.45% Debentures Due
2007, $400,000,000 principal amount of 7.90%
Debentures Due 2017, $500,000,000 principal
amount of 7.95% Debentures Due 2027,
$100,000,000 principal amount of 6.95% Deben-
tures Due 2027, $250,000,000 principal amount
of 7.25% Debentures Due 2027 and $150,000,000
principal amount of 8.30% Debentures Due
2032.
MATURITY........................ The New 2002 Debentures will mature on May 1,
2002, the New 2004 Debentures will mature on
May 1, 2004, the New 2007 Debentures will ma-
ture on May 1, 2007, the New 2017 Debentures
will mature on May 1, 2017, the New 7.95%
2027 Debentures will mature on May 1, 2027,
the New 6.95% 2027 Debentures will mature on
May 1, 2027, the New 7.25% 2027 Debentures
will mature on May 1, 2027, and the New 2032
Debentures will mature on May 1, 2032.
INTEREST PAYMENT DATES.......... Interest on the New Debentures is payable
semiannually on each May 1 and November 1,
commencing November 1, 1997.
REDEMPTION...................... The New 2032 Debentures will not be redeem-
able prior to May 1, 2007. On and after that
date, the New 2032 Debentures will be redeem-
able at the option of the Company, as a whole
or in part, at any time on at least 30 days'
notice, at the respective prices indicated
herein. None of the other series of New De-
bentures will be redeemable prior to maturi-
ty. See "Description of the New Debentures--
Redemption."
PURCHASE AT OPTION OF HOLDER.... Each holder of the New 6.95% 2027 Debentures
may require the Company to repurchase all or
a portion of such series owned by such holder
on May 1, 2002 at a purchase price equal to
100% of the principal amount thereof plus ac-
crued interest. Each holder of the New 7.25%
2027 Debentures may require the Company to
repurchase all or a portion of such series
owned by such holder on May 1, 2005 at a pur-
chase
8
|
price equal to 100% of the principal amount
thereof plus accrued interest. No such repur-
chase right will be available to holders of
the other series of New Debentures. See "De-
scription of New Debentures--Purchase at Op-
tion of Holder."
RANKING......................... The New Debentures will be senior securities
of the Company, ranking pari passu with all
other unsubordinated and unsecured indebted-
ness of the Company.
|
RISK FACTORS
Holders of Old Debentures should carefully review the information contained elsewhere in this Prospectus and should particularly consider the following matters.
CONSEQUENCES OF FAILURE TO EXCHANGE OLD DEBENTURES
The Old Debentures have not been registered under the Securities Act or any state securities laws and therefore may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act and any other applicable securities laws, or pursuant to an exemption therefrom or in a transaction not subject thereto, and in each case in compliance with certain other conditions and restrictions. Old Debentures which remain outstanding after consummation of the Exchange Offers will continue to bear a legend reflecting such restrictions on transfer. In addition, upon consummation of the Exchange Offers, holders of Old Debentures which remain outstanding will not be entitled to any rights to have such Old Debentures registered under the Securities Act or to any similar rights under the Registration Rights Agreement (subject to certain limited exceptions as described herein). See "Description of the New Debentures--Registration Rights Agreement." The Company does not intend to register under the Securities Act any Old Debentures which remain outstanding after consummation of the Exchange Offers (subject to such limited exceptions, if applicable). To the extent that Old Debentures are tendered and accepted in the Exchange Offers, a holder's ability to sell untendered Old Debentures could be adversely affected. See "The Exchange Offers--Consequences of Failure to Exchange Old Debentures."
ABSENCE OF PUBLIC MARKET
The Old Debentures were issued to, and the Company believes are currently owned by, a relatively small number of beneficial owners. The Old Debentures have not been registered under the Securities Act and will be subject to restrictions on transferability to the extent that they are not exchanged for the New Debentures. Although the New Debentures will generally be permitted to be resold or otherwise transferred by the holders (who are not affiliates of the Company) without compliance with the registration requirements under the Securities Act, they will constitute a new issue of securities with no established trading market. Any market-making activity will be subject to the limits imposed by the Securities Act and the Exchange Act and may be limited during the Exchange Offers. Accordingly, no assurance can be given that an active public or other market will develop for the New Debentures or the Old Debentures or as to the liquidity of or the trading market for the New Debentures or the Old Debentures. If an active public market does not develop, the market price and liquidity of the New Debentures may be adversely affected.
If a public trading market for the New Debentures develops, future trading prices of such securities will depend on many factors, including, among other things, prevailing interest rates, results of operations and the market for similar securities. Depending on prevailing interest rates, the market for similar securities and other factors, including the financial condition of the Company, the New Debentures may trade at a discount.
Notwithstanding the registration of the New Debentures in the Exchange Offers, holders who are "affiliates" (as defined under Rule 405 of the Securities Act) of the Company may publicly offer for sale or resell the New Debentures only in compliance with the provisions of Rule 144 under the Securities Act.
Each broker-dealer that receives New Debentures for its own account in exchange for Old Debentures, where such Old Debentures were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such New Debentures. See "Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Unless tenders are made by book-entry transfer, issuance of the New Debentures in exchange for Old Debentures pursuant to the Exchange Offers will be made only after timely receipt by the Exchange Agent of
such Old Debentures, a properly completed and duly executed Letter of Transmittal and all other required documents. Therefore, holders of the Old Debentures desiring to tender such Old Debentures in exchange for New Debentures should allow sufficient time to ensure timely delivery. Neither the Exchange Agent nor the Company is under any duty to give notification of defects or irregularities with respect to the tenders of Old Debentures for exchange.
THE COMPANY
The Company is an international transportation company with operations in the following business units: CSX Transportation, Inc. ("CSXT"), Sea-Land Service, Inc. ("Sea-Land"), American Commercial Lines, Inc. ("ACL"), CSX Intermodal, Inc. ("CSXI"), Customized Transportation, Inc. ("CTI") and non- transportation businesses. In 1996, the Company generated approximately $10.5 billion of operating revenue and $1.5 billion of operating income.
CSXT is an eastern Class I freight railroad, providing rail freight transportation and distribution services over 18,504 route miles of track in 20 states in the East, Midwest and South of the United States and in the Province of Ontario, Canada. In 1996, CSXT accounted for 47% of the total operating revenue and 74% of the operating income of CSX.
Sea-Land is a worldwide leader in container-shipping transportation and logistics services. Sea-Land operates 28 preferential and exclusive marine terminal facilities across its global network. In addition, Sea-Land operates a fleet of 99 container ships and approximately 208,000 containers in United States and foreign trade and serves 120 ports. In 1996, Sea-Land accounted for 38% of the total operating revenue and 21% of the operating income of CSX.
ACL is the nation's leader in barge transportation, operating 137 towboats and more than 3,700 barges on both United States and South American waterways. In 1996, ACL accounted for 6% of the total operating revenue and 7% of the operating income of CSX.
CSXI provides transcontinental intermodal transportation services and operates a network of dedicated intermodal facilities across North America. In 1996, CSXI contributed 6% of the total operating revenue and 2% of the operating income of CSX.
CTI is a provider of contract logistics, distribution, warehousing, assembly and just-in-time delivery services. In 1996, CTI provided 3% of the total operating revenue and 1% of the operating income of CSX.
Non-Transportation: Resort holdings include the Mobil Five-Star and AAA Five-Diamond rated hotel, The Greenbrier in White Sulphur Springs, West Virginia, and the Grand Teton Lodge Company in Moran, Wyoming. CSX Real Property, Inc. is responsible for sales, leasing and development of CSX-owned properties. CSX holds a majority interest in Yukon Pacific Corporation, which is promoting construction of the Trans-Alaska Gas System to transport Alaska's North Slope natural gas to Valdez for export to Asian markets.
The Company was incorporated in Virginia in 1978. The Company's principal executive offices are located at One James Center, 901 East Cary Street, Richmond, Virginia 23219 (telephone 804-782-1400). Unless the context indicates otherwise, references herein to the Company or CSX are to CSX Corporation and its consolidated subsidiaries.
JOINT CSX/NSC ACQUISITION OF CONRAIL
CSX/NSC Agreement
On April 8, 1997, the Company and Norfolk Southern Corporation, a Virginia corporation ("NSC"), entered into an agreement (the "CSX/NSC Agreement") providing for their joint acquisition of Conrail Inc., a
Pennsylvania corporation ("Conrail"), and the division of Conrail's routes and other assets. Conrail is a holding company of which the principal subsidiary is Consolidated Rail Corporation, a Class I freight railroad that operates approximately 10,500 route miles in the Northeast and Midwest of the United States and the Province of Quebec, Canada, and which possesses superior access to certain major northeast markets, including the New York and Boston metropolitan areas. NSC owns an eastern Class I freight railroad, Norfolk Southern Railway Company.
Under the CSX/NSC Agreement, the Company and NSC acquired all outstanding shares of Conrail not already owned by them (the "Shares") for $115 in cash per Share through a jointly owned acquisition entity (the "Acquisition Entity"). Each of the Company and NSC possesses 50% of the voting and management rights of the Acquisition Entity, and non-voting equity is apportioned between the parties to achieve overall economic allocations of 42% for CSX and 58% for NSC (their respective "Percentages"). Following approval by the Surface Transportation Board (the "STB") as described below, Conrail's assets will be segregated within Conrail, and the Company and NSC will each benefit from the operation of a specified portion of the Conrail routes and other assets through the use of various operating arrangements, and certain Conrail assets will be operated for the joint benefit of the Company and NSC.
Acquisition of most of the Conrail Shares was effected under a tender offer, initiated by the Company in December 1996 and amended in April 1997 to include NSC as a co-bidder (the "Joint Tender Offer"), which closed in May 1997. Shortly thereafter, Conrail was merged with a wholly-owned subsidiary of the Acquisition Entity and all remaining Conrail Shares not tendered were converted into the right to receive $115 in cash per share. The aggregate cost of the Joint Tender Offer, the merger and the shares of Conrail already acquired by the Company and NSC was approximately $9.9 billion. Pursuant to the CSX/NSC Agreement, the Company has paid 42%, or approximately $4.2 billion, and NSC has paid 58%, or approximately $5.7 billion, of such cost. These totals include approximately $2.0 billion spent by the Company and $1.0 billion spent by NSC to acquire approximately 30%, in the aggregate, of Conrail's shares prior to the Joint Tender Offer. Including its capitalized transaction costs, the Company's aggregate purchase price was approximately $4.3 billion.
Conrail Shares purchased in the Joint Tender Offer and the merger, together with all Conrail shares previously purchased by the Company and NSC, have been deposited into a voting trust pending STB approval of the joint acquisition, control and division of Conrail by the Company and NSC. Furthermore, by entering into the CSX/NSC Agreement, the Company is obligated under the Pennsylvania anti-takeover laws to purchase any Conrail Shares "put" to the Company in accordance with the procedures of such laws for at least $115 per share in cash.
Joint CSX/NSC STB Application
The exercise of control over Conrail by the Company and NSC remains subject to a number of conditions and approvals, including approval by the STB, which has the authority to modify contract terms and impose additional conditions, including with respect to divestitures, grants of trackage rights and other terms of continuing operations. The Company and NSC intend to file a joint application with the STB in June 1997 for control and division of Conrail and for such other matters as may be required to be approved by the STB. The joint STB application will address traffic flows, operations and related matters; will outline the capital investments each company plans to make in new connections and facilities and to increase capacity on critical routes; and will detail operating savings and other public benefits resulting from the transaction. The application also will contain certain historical and pro forma financial information required by the STB. The STB has issued a scheduling order that provides for issuance of a final STB decision no later than 350 days after the Company and NSC file their joint application. No assurance can be given with respect to the receipt of STB approval or the modifications or conditions that may be imposed in connection therewith.
Proposed Division of Conrail Routes
Until the date the Company and NSC are permitted by the STB to assume control over Conrail (the "Control Date"), Conrail will continue to be managed by its current Board of Directors and management. After
the Control Date, Conrail will segregate its assets primarily into two groups to facilitate their separate operation pursuant to leasing, operating, partnership or other similar arrangements. The remaining assets and liabilities of Conrail, including joint facilities, generally will either be shared or allocated ratably between the Company and NSC according to their Percentages. In arriving at the proposed division of Conrail and their Percentages, the Company and NSC negotiated with a view toward producing the best fits with their existing systems and optimizing service to their respective customers. The maps reprinted on the front inside cover and back inside cover of this Prospectus show, respectively, the proposed post- Transaction (as defined below) CSXT route system and the approximate division of Conrail's routes as contemplated by the CSX/NSC Agreement. These maps are included for illustrative purposes only and are qualified in their entirety by reference to the CSX/NSC Agreement. See "Incorporation of Certain Documents by Reference."
The acquisition by the Company of the Conrail Shares and the right to use the assets allocated to or shared by the Company pursuant to the CSX/NSC Agreement and the liabilities allocated to or shared by it pursuant to the CSX/NSC Agreement will be referred to in this Prospectus as the "Transaction." Many of the terms of the Transaction will be detailed in further definitive documentation that is currently being negotiated between CSX and NSC (the "Definitive Documentation").
For additional information regarding the Transaction and the CSX/NSC Agreement, reference is made to the Company's Tender Offer Statement on Schedule 14D-1, together with exhibits thereto, initially filed with the Commission on December 6, 1996, as amended.
Financing Arrangements
The Company spent approximately $2.2 billion to purchase its portion of the outstanding Shares pursuant to the Joint Tender Offer and the merger. The Company previously paid approximately $2 billion to acquire about 20% of Conrail's shares in November 1996. At that time, the Company arranged a five- year $4.8 billion bank credit facility (the "Credit Agreement") to finance an acquisition of Conrail and to meet general working capital needs. The Company used the majority of the net proceeds from the sale of the Old Debentures to finance the balance of its contribution under the Joint Tender Offer and the merger. On May 6, 1997, in connection with the consummation of the sale of Old Debentures, the Company reduced by $2.3 billion the lenders' commitments under the Credit Agreement. See "Capitalization."
Such financings have resulted in the Company's having outstanding a combination of long-term debt with staggered maturities and commercial paper. The Company expects its long-term debt levels (including the Company's portion of Conrail debt) to peak in 1998 at approximately $6.8 billion, with related interest charges (including interest payments on the Company's portion of Conrail debt) to peak at approximately $520.0 million. While the Definitive Documentation is not complete, the Company and NSC contemplate that payments to Conrail under operating or similar arrangements and through capital contributions to the Acquisition Entity will be sufficient to pay obligations on Conrail's outstanding debt instruments in accordance with their terms, or to refinance such obligations, as appropriate. The Company and NSC have agreed in the CSX/NSC Agreement that such debt will be shared ratably according to their Percentages.
BENEFITS OF THE TRANSACTION
Broadest Geographic Network in Eastern United States
The Transaction will significantly enhance the Company's position as a leading global transportation company. The Company will remain the largest railroad in the eastern United States and become the third largest railroad in the nation, measured in terms of route miles and ton-miles. The Company, as a result of the Transaction, will be adding approximately 3,500 route miles, or 19%, to its rail network, and sharing with NSC approximately 1,200 additional route miles. The Company will have approximately 22,000 route miles in 22 states, the District of Columbia and the Provinces of Ontario and Quebec, Canada, and will provide direct access to virtually every major metropolitan area east of the Mississippi River and to eleven of the largest east coast and gulf ports.
Enhanced Operating Efficiencies and Revenue Growth
Management expects the integration of Conrail operations resulting from the Transaction to add approximately $1.6 billion, or 15%, to the Company's annual revenue beginning in the first twelve months following the Control Date. Management believes that the Transaction will also result in growth of the Company's rail revenue base through expansion of single-line service and the Company's ability to compete more effectively on certain routes along which large quantities of goods are now transported by truck. Single-line service is preferred by shippers over joint-line service because of lower transaction costs, reduced delays, less damage from interchange operations and single- carrier accountability. The addition of Conrail lines to the Company's rail network also will improve operational efficiency through better asset utilization. Optimization of train sizes, increased length of haul, improved backhauls, shorter routes to many destinations and fewer empty movements are all expected to produce cost reductions for the combined rail network. Other significant savings will be achieved through the realization of economies of scale, rationalization of administrative and other overhead expenses and consolidation of duplicative facilities.
Financial Effects
The Company expects that the benefits from the Transaction will begin to build from the Control Date and should be largely realized within a three-year period thereafter. Therefore, for the purposes of the following discussion, Year 1, Year 2 and Year 3 correspond to the three consecutive 12-month periods following the Control Date. Based on joint efforts of the Company and Conrail to identify potential cost savings, management currently estimates that the Transaction will lead to quantifiable pretax benefits from increased traffic and cost efficiencies of approximately $75 million, $170 million and $240 million annually in Years 1, 2 and 3, respectively, compared to the separate operation of the Company and its share of Conrail. These benefits include estimated incremental operating income of $25 million, $54 million and $75 million expected through increased traffic in Years 1, 2 and 3, respectively. The remaining pretax benefits will be in the form of operating cost savings, with $50 million, $116 million and $165 million expected to be realized in Years 1, 2 and 3, respectively. Further, management expects a reduction in the requirement for annual capital expenditures of approximately $12 million, $28 million and $40 million in Years 1, 2 and 3, respectively. Management estimates that the Company will, in Years 1 and 2, incur one-time transition capital expenditures in connection with the integration of operations. Those are expected to be $310 million in Year 1 and $178 million in Year 2. The Company is continuing to evaluate the foregoing estimates, some or all of which may be refined in the joint application to be filed with the STB.
The overall purchase price, including transaction costs, paid by the Company is expected to exceed the historical net book value of the Company's share of the underlying Conrail assets by approximately $2.9 billion. Although purchase accounting adjustments will not be finalized until the Transaction is completed, a substantial portion of the excess purchase price is expected to be allocated to specific net assets and amortized over the remaining useful lives of those assets. The remainder of the excess purchase price will be allocated to goodwill and amortized over 40 years.
Because of the time required to obtain necessary regulatory and other approvals, the Company does not expect integrated operations to have a significant effect on operating and financial results prior to fiscal 1998. The primary impact of the proposed Transaction on net earnings prior to the integration of operations is likely to be the after-tax effect of the Company's share of Conrail's net earnings, reported under the equity method of accounting, less amortization of the excess purchase price and interest on debt incurred to acquire Conrail shares. Net cash flow prior to operational integration is expected to be reduced by interest payments on such debt. The average interest rate in 1996 on debt incurred to acquire Conrail shares was approximately 5.6%. The degree of negative impact on net earnings or net cash flow during 1997 will be significantly affected by the net earnings reported by Conrail and the average interest rate and timing of interest payments on the related debt.
THE ABOVE ESTIMATES AND FORECASTS ARE BASED UPON NUMEROUS ESTIMATES AND
ASSUMPTIONS ABOUT COMPLEX ECONOMIC AND OPERATING FACTORS WITH RESPECT TO
INDUSTRY PERFORMANCE, GENERAL BUSINESS AND ECONOMIC CONDITIONS AND OTHER MATTERS THAT CANNOT BE PREDICTED ACCURATELY AND THAT ARE SUBJECT TO CONTINGENCIES OVER WHICH THE COMPANY HAS NO CONTROL. SUCH FORWARD LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER IMPORTANT FACTORS THAT COULD CAUSE THE ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS OF THE COMPANY TO DIFFER MATERIALLY FROM ANY FUTURE RESULTS, PERFORMANCE OR ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH FORWARD LOOKING STATEMENTS. CERTAIN OF THOSE RISKS, UNCERTAINTIES AND OTHER IMPORTANT FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY INCLUDE: (A) FUTURE ECONOMIC CONDITIONS IN THE MARKETS IN WHICH THE COMPANY AND CONRAIL OPERATE; (B) FINANCIAL MARKET CONDITIONS; (C) INFLATION RATES; (D) CHANGING COMPETITION; (E) CHANGES IN THE REGULATORY CLIMATE IN THE UNITED STATES RAILROAD INDUSTRY; (F) THE ABILITY TO ELIMINATE DUPLICATIVE ADMINISTRATIVE FUNCTIONS; AND (G) ADVERSE CHANGES IN APPLICABLE LAWS, REGULATIONS OR RULES GOVERNING ENVIRONMENTAL, TAX OR ACCOUNTING MATTERS. THESE FORWARD LOOKING STATEMENTS SPEAK ONLY AS OF THE DATE OF THIS PROSPECTUS. THE COMPANY DISCLAIMS ANY OBLIGATION OR UNDERTAKING TO DISSEMINATE ANY UPDATES OR REVISIONS TO ANY FORWARD LOOKING STATEMENT CONTAINED HEREIN TO REFLECT ANY CHANGE IN THE COMPANY'S EXPECTATIONS WITH REGARD THERETO OR ANY CHANGE IN EVENTS, CONDITIONS OR CIRCUMSTANCES ON WHICH ANY SUCH STATEMENT IS BASED.
USE OF PROCEEDS
The Company will not receive any proceeds from the Exchange Offers. On May 6, 1997, the Company issued $350,000,000 principal amount of Old 2002 Debentures, $300,000,000 principal amount of Old 2004 Debentures, $450,000,000 principal amount of Old 2007 Debentures, $400,000,000 principal amount of Old 2017 Debentures, $500,000,000 principal amount of Old 7.95% 2027 Debentures, $100,000,000 principal amount of Old 6.95% 2027 Debentures and $250,000,000 principal amount of Old 7.25% 2027 Debentures, and on May 8, 1996 the Company issued $150,000,000 principal amount of Old 2032 Debentures (together, the "Offering"). The Old Debentures were sold by the Company to Salomon Brothers Inc, Credit Suisse First Boston Corporation, Chase Securities Inc., Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated and NationsBanc Capital Markets, Inc. (the "Initial Purchasers") and were in turn sold by the Initial Purchasers to a limited number of qualified institutional buyers and accredited investors pursuant to Rule 144A and Regulation D, respectively, under the Securities Act and exemptions from applicable state securities laws, and the Offering was not subject to the registration requirements of the Securities Act and applicable state securities laws. The net proceeds from the sale of the Old Debentures sold in the Offering primarily were used to fund a portion of the Company's obligations under the CSX/NSC Agreement, including the purchase of Conrail Shares pursuant to the Joint Tender Offer and the merger. The balance of the net proceeds were used for general corporate purposes, including, without limitation, repayment of borrowings, working capital and capital expenditures. See "The Company--Joint CSX/NSC Acquisition of Conrail."
CAPITALIZATION
The following table sets forth (i) the unaudited historical consolidated capitalization of the Company as of March 28, 1997, (ii) the adjustment to give effect to the issuance of the Old Debentures on May 6 and May 8, 1997, and (iii) the pro forma consolidated capitalization after such adjustment. For additional information as to the capitalization of the Company, see "Selected Historical Financial Data for the Company" contained herein and Management's Discussion and Analysis of Results of Operations and Financial Condition and the consolidated financial statements of the Company and the related notes thereto in the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 28, 1997 and its Annual Report on Form 10-K for the fiscal year ended December 27, 1996 incorporated herein by reference.
AS OF MARCH 28, 1997
-------------------------------
HISTORICAL ADJUSTMENT PRO FORMA
---------- ---------- ---------
(DOLLARS IN MILLIONS,
EXCEPT PER SHARE DATA)
(UNAUDITED)
LONG-TERM DEBT
Commercial paper (1)......................... $2,300 $ (300) $ 2,000
Notes payable................................ 483 483
Debentures................................... 649 2,500 3,149
Equipment obligations........................ 709 709
Mortgage bonds............................... 76 76
Other obligations, including capital leases.. 169 169
Current maturities of long-term debt......... (143) (143)
------ ------ -------
Total long-term debt....................... 4,243 2,200 6,443
SHAREHOLDERS' EQUITY
Common stock, $1 par value (300,000,000
shares authorized, 217,662,928 shares issued
and outstanding)............................ 218 218
Other capital................................ 1,470 1,470
Retained earnings............................ 3,546 3,546
Minimum pension liability.................... (107) (107)
------ -------
Total shareholders' equity................. 5,127 5,127
------ ------ -------
Total capitalization....................... $9,370 $2,200 $11,570
====== ====== =======
TOTAL LONG-TERM DEBT TO TOTAL CAPITALIZATION... 45% 56%
====== =======
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
AND SELECTED FINANCIAL RATIO
The Company's consolidated ratio of earnings to fixed charges and ratio of total long-term debt to total capitalization for each of the fiscal periods indicated are as follows:
FOR THE FISCAL
QUARTERS ENDED FOR THE FISCAL YEARS ENDED
----------------- --------------------------------------------
MAR. 28, MAR. 29, DEC. 27, DEC. 29, DEC. 30, DEC. 31, DEC. 31,
1997 1996 1996 1995 (B) 1994 1993 (C) 1992 (D)
-------- -------- -------- -------- -------- -------- --------
Ratio of earnings to
fixed charges (a)...... 2.8x 3.1x 4.0x 3.2x 3.1x 2.3x 1.0x
Total long-term debt to
total capitalization... 45% 34% 46% 34% 41% 50% 52%
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SELECTED HISTORICAL FINANCIAL DATA FOR THE COMPANY
The selected financial data presented below for the fiscal quarters ended March 28, 1997 and March 29, 1996 and the fiscal years ended December 27, 1996, December 29, 1995, December 30, 1994, December 31, 1993 and December 31, 1992 and as of the end of each such fiscal period is derived from the consolidated financial statements of the Company and should be read in conjunction with the information and consolidated financial statements and related notes and Management's Discussion and Analysis of Results of Operations and Financial Condition in the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 28, 1997 and its Annual Report on Form 10-K for the fiscal year ended December 27, 1996, incorporated herein by reference. The consolidated financial statements for the fiscal years ended December 27, 1996, December 29, 1995, December 30, 1994, December 31, 1993 and December 31, 1992 have been audited by Ernst & Young LLP, independent auditors. The consolidated financial statements for the fiscal quarters ended March 28, 1997 and March 29, 1996 are unaudited but, in the opinion of management, include all adjustments necessary for a fair presentation.
AS OF OR FOR THE
FISCAL QUARTERS ENDED AS OF OR FOR THE FISCAL YEARS ENDED
---------------------- --------------------------------------------
MAR. 28, MAR. 29, DEC. 27, DEC. 29, DEC. 30, DEC. 31, DEC. 31,
1997 1996 1996 1995 1994 1993 1992
---------- ---------- -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
INCOME STATEMENT DATA
Operating revenue..... $ 2,567 $ 2,514 $10,536 $10,304 $ 9,409 $ 8,766 $ 8,549
Operating income...... 324 296 1,522 1,126 1,182 881 214
Net earnings.......... 151 146 855 618 652 359 20
PER SHARE DATA
Net earnings per
common share......... $ 0.70 $ 0.69 $ 4.00 $ 2.94 $ 3.12 $ 1.73 $ 0.10
Book value............ 23.56 20.69 23.04 20.15 17.81 15.27 14.37
Cash dividends per
common share......... 0.26 0.26 1.04 .092 0.88 0.79 0.76
BALANCE SHEET DATA
Total assets.......... $ 16,888 $ 14,366 $16,965 $14,282 $13,724 $13,420 $13,049
Total debt, including
current maturities... 4,673 3,077 4,767 2,856 3,131 3,443 3,459
Stockholders' equity.. 5,127 4,374 4,995 4,242 3,731 3,180 2,975
|
FISCAL QUARTER ENDED:
Mar. 28, 1997-- The Company incurred net costs before income taxes of $24
million with respect to its investment in Conrail common stock.
These net costs, principally interest on debt issued to acquire
the investment less dividends received on the stock, reduced
net earnings by $16 million, seven cents per share.
|
FISCAL YEARS ENDED:
Dec. 29, 1995-- Operating income includes a charge of $257 million to recognize
the estimated costs of initiatives to revise, restructure and
consolidate specific operations and administrative functions at
its rail and container-shipping units. The restructuring charge
reduced net earnings by $160 million, 76 cents per share. The
Company also recognized a net investment gain of $77 million,
$51 million after tax, 24 cents per share, on the issuance of
an equity interest in a Sea-Land terminal and related
operations in Asia and the write-down of various investments.
Dec. 30, 1994-- Net earnings includes an accelerated pretax gain of $69
million, $42 million after tax, 20 cents per share on the
satisfaction by the state of Florida of its remaining unfunded
obligation issued in 1988 to consummate the purchase of 80
miles of track and right of way.
18
|
Dec. 31, 1993-- Operating income includes a charge of $93 million to recognize
the estimated costs of restructuring certain operations and
functions at the Company's container-shipping unit. The
restructuring charge reduced net earnings by $61 million, 30
cents per share. Net earnings also includes charges of $56
million, 26 cents per share, relating to the revision of the
Company's estimated annual effective tax rate to reflect the
change in the federal statutory income tax rate from 34% to
35%.
Dec. 31, 1992-- Operating income includes a charge of $699 million to recognize
the estimated costs of buying out certain trip-based
compensation elements paid to train crews. The charge reduced
net earnings by $450 million, $2.19 per share.
|
RESTATEMENT:
Beginning with the quarter ended June 28, 1996, the Company changed its earnings presentation to exclude non-transportation activities from operating revenue and expense. These activities, principally real estate and resort operations, are now included in other income. Amounts for periods prior to June 28, 1996 have been restated to conform to the revised presentation.
All per share data for periods prior to December 21, 1995 have been adjusted for the two- for-one common stock split distributed to shareholders on that date.
SELECTED HISTORICAL FINANCIAL DATA FOR CONRAIL
The selected financial data presented below for the quarters ended March 31, 1997 and 1996 and the years ended December 31, 1996, 1995, 1994 and 1993 are derived from the consolidated financial statements of Conrail and its subsidiaries and should be read in conjunction with the information and consolidated statements and related notes and Management's Discussion and Analysis of Results of Operations and Financial Condition contained in Conrail's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997 and its Annual Report on Form 10-K for the year ended December 31, 1996. Reports on Form 10-K for years prior to 1993 were filed by Consolidated Rail Corporation, Conrail's only significant subsidiary and primary asset for those time periods, and 1992 historical data presented herein are with respect to such corporation.
AS OF OR FOR THE QUARTERS
ENDED MARCH 31, AS OF OR FOR THE YEARS ENDED DECEMBER 31,
------------------------- --------------------------------------------
1997 1996 1996 1995 1994 1993 1992
------------ ------------ -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
INCOME STATEMENT DATA
Revenues.............. $ 906 $ 889 $ 3,714 $ 3,686 $ 3,733 $ 3,453 $ 3,345
Operating income...... 116 69 601 456 606 591 534
Income before
cumulative effect of
changes in accounting
principles........... 61 31 342 264 324 234 282
Net income............ 61 31 342 264 324 160 282
PER SHARE DATA
Income per common
share before the
cumulative effect of
changes in accounting
principles:
Primary............. $ 0.74 $ 0.36 $ 4.25 $ 3.19 $ 3.90 $ 2.74 $ 3.28
Fully diluted....... 0.70 0.35 3.89 2.94 3.56 2.51 2.99
Net income
Primary............. $ 0.74 $ 0.36 $ 4.25 $ 3.19 $ 3.90 $ 1.82 $ 3.28
Fully diluted....... 0.70 0.35 3.89 2.94 3.56 1.70 2.99
Book Value............ 38.32 35.42 37.91 35.66 36.69 34.57 34.16
Cash dividends per
common share......... 0.475 0.425 1.80 1.60 1.40 1.20 1.00
BALANCE SHEET DATA
Total assets.......... $ 8,470 $ 8,432 $ 8,402 $ 8,424 $ 8,322 $ 7,948 $ 7,315
Total debt, including
current maturities... 2,036 2,157 2,105 2,181 2,182 2,184 1,911
Shareholders' equity.. 3,152 2,944 3,107 2,977 2,925 2,784 2,748
RATIO OF EARNINGS TO
FIXED CHARGES.......... 2.5x 1.8x 3.2x 2.5x 3.2x 3.0x 3.3x
|
QUARTER ENDED MARCH 31,
1997-- Operating income includes merger-related costs of $22 million. These
costs reduced net income by $14 million and earnings per share ("EPS")
17 cents on a primary basis and 16 cents on a fully diluted basis.
|
YEARS ENDED DECEMBER 31,
1996-- Operating income includes a charge of $135 million for voluntary
separation programs, which reduced net income by $83 million and EPS
$1.07 on a primary basis and 95 cents on a fully diluted basis.
Operating income also includes merger-related costs of $16 million,
which reduced net income by $10 million and EPS by 13 cents on a primary
basis and 11 cents on a fully-diluted basis.
1995-- Operating income includes an asset disposition charge of $285 million
for rail lines and other assets written down to estimated net realizable
value, which reduced net income by $176 million and EPS $2.24 on a
primary basis and $1.98 on a fully diluted basis. Net income also
includes a one-time $21 million benefit related to a decrease in a state
income tax rate which increased EPS 27 cents on a primary basis and 23
cents on a fully diluted basis.
|
1994-- Included in operating income is a charge of $84 million ($51 million
after tax benefits) for a voluntary early retirement program and
related costs. This reduced EPS 64 cents on a primary basis and 57
cents on a fully diluted basis.
1993-- Net income includes charges of $74 million as a result of the adoption
of required changes in accounting for income taxes and postretirement
benefits other than pensions which reduced EPS 92 cents on a primary
basis and 81 cents on a fully diluted basis; $50 million ($80 million
before tax benefit of $30 million) for the disposition of a subsidiary
which decreased EPS 62 cents on a primary basis and 55 cents on a
fully diluted basis; and $34 million for the increase in the federal
corporate income tax rate which decreased EPS 42 cents on a primary
basis and 37 cents on a fully diluted basis.
|
UNAUDITED PRO FORMA FINANCIAL STATEMENTS
On May 23, 1997, the Joint Tender Offer for the Conrail Shares expired. As a result of the contribution by the Company and NSC of Conrail shares owned by them before the Joint Tender Offer as well as the contribution of funds to complete the Joint Tender Offer and the merger, they have, respectively, a 42 percent and a 58 percent economic interest in the Acquisition Entity which now owns all of the Conrail shares. Such shares are being held in a voting trust pending STB approval. The Company and NSC also each may exercise a 50 percent voting interest in the Acquisition Entity and each has the right to appoint half of that entity's directors and a full-time Co-Chief Executive Officer. Under the CSX/NSC Agreement, subject to STB approval, the Company will operate routes and assets (or rights thereto) that generated approximately 42 percent of Conrail's 1995 revenues.
The Unaudited Pro Forma Financial Statements included herein present a Condensed Consolidated Statement of Financial Position for the Company as of March 28, 1997, and Condensed Consolidated Statements of Earnings for the fiscal quarter ended March 28, 1997, and the fiscal year ended December 27, 1996. The pro forma financial statements reflect (i) the completion by the Company and NSC of their Joint Tender Offer for the Conrail Shares and the merger at $115 per share through the Acquisition Entity; and (ii) the related borrowings by the Company, including the Debentures.
These events are reflected in the Pro Forma Condensed Consolidated Statement of Financial Position as if they had occurred on March 28, 1997, and in the Pro Forma Condensed Consolidated Statements of Earnings as if they had occurred at the beginning of the period presented. The financial information for Conrail was based upon its historical financial statements for the quarter ended March 31, 1997, and for the year ended December 31, 1996, as reported in its Form 10-Q and Form 10-K, respectively. Conrail's 1996 results included a special charge of $135 million (pre-tax) for voluntary separation programs.
The Company is using the equity method of accounting for its interest in Conrail following consummation of the Joint Tender Offer and the merger and continuing as long as the Conrail shares are held in the voting trust--a period that will extend at least until the effective date of the STB's decision approving the transactions contemplated by the CSX/NSC Agreement (if such approval is obtained). In accordance with Accounting Principles Board ("APB") Opinion No. 18, "The Equity Method of Accounting for Investments in Common Stock," the excess of the Company's purchase price over the underlying net assets acquired ("Excess") is being amortized. Based on a preliminary analysis of the fair value of the underlying net assets of Conrail, the Company believes a significant portion of the Excess will be allocated to long-lived assets other than goodwill. Further information as to the values of assets and liabilities, as well as specific allocations to the Company or NSC, may affect these preliminary estimates.
The method of accounting for the investment in Conrail subsequent to dissolution of the voting trust will depend on the final terms of the ownership arrangement between the Company and NSC approved by the STB. Additionally, the ultimate terms of leases, operating partnerships and other arrangements will affect the accounting. It is also expected that some of the assets and operations of Conrail will remain subject to joint control by the Company and NSC and, thus, will continue to be accounted for using the equity method of accounting even after STB approval.
The unaudited pro forma financial statements do not reflect synergies and, accordingly, do not account for any potential increases in operating income, any estimated cost savings, any adjustments to conform accounting practices or any capital expenditures to be realized or made by either the Company or Conrail to achieve such improvements. THE UNAUDITED PRO FORMA FINANCIAL STATEMENTS ARE PREPARED FOR ILLUSTRATIVE PURPOSES ONLY AND ARE NOT NECESSARILY INDICATIVE OF THE FINANCIAL POSITION OR RESULTS OF OPERATIONS THAT MIGHT HAVE OCCURRED HAD THE APPLICABLE TRANSACTIONS ACTUALLY TAKEN PLACE ON THE DATE INDICATED, OR OF FUTURE RESULTS OF OPERATIONS OR FINANCIAL POSITION OF THE STANDALONE OR COMBINED ENTITIES.
The unaudited pro forma financial statements are based on the historical consolidated financial statements of the Company and Conrail and should be read in conjunction with such historical financial statements and the notes thereto.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF FINANCIAL POSITION
AS OF MARCH 28, 1997
UNAUDITED
(DOLLARS IN MILLIONS)
PRO FORMA
CSX WITH
CSX PRO FORMA CONRAIL
HISTORICAL ADJUSTMENTS INVESTMENT
---------- ----------- ----------
ASSETS
Current assets........................... $ 1,941 $ 1,941
Properties--net.......................... 11,924 11,924
Investment in Conrail.................... 1,955 $2,251/(1)/ 4,206
Other long-term assets................... 1,068 50/(1)/ 1,118
------- ------ -------
Total assets........................... $16,888 $2,301 $19,189
======= ====== =======
LIABILITIES
Current liabilities...................... $ 2,571 $ 101/(1)/ $ 2,672
Long-term debt........................... 4,243 2,200/(1)/ 6,443
Deferred income taxes.................... 2,743 2,743
Other long-term liabilities.............. 2,204 2,204
------- ------ -------
Total liabilities...................... 11,761 2,301 14,062
------- ------ -------
SHAREHOLDERS' EQUITY
Common stock............................. 218 218
Other capital............................ 1,470 1,470
Retained earnings........................ 3,546 3,546
Minimum pension liability................ (107) (107)
------- ------ -------
Total shareholders' equity............. 5,127 -- 5,127
------- ------ -------
Total liabilities & shareholders' equi-
ty.................................... $16,888 $2,301 $19,189
======= ====== =======
|
See accompanying Notes to Unaudited Pro Forma Financial Statements.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF EARNINGS
FISCAL QUARTER ENDED MARCH 28, 1997
UNAUDITED
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
PRO FORMA
CSX WITH
CSX PRO FORMA CONRAIL
HISTORICAL ADJUSTMENTS INVESTMENT (5)
---------- ----------- --------------
Operating revenue................... $ 2,567 $ 2,567
Operating expense................... 2,243 2,243
-------- --------
Operating income.................... 324 324
Other income (expense).............. (7) $ 1 /(3)/ (6)
Interest expense.................... 84 46 /(2)/ 130
-------- ------ --------
Earnings before income taxes........ 233 (45) 188
Income tax expense.................. 82 (16)/(4)/ 66
-------- ------ --------
Net earnings........................ $ 151 $ (29) $ 122
======== ====== ========
Earnings per share.................. $ 0.70 $(0.14) $ 0.56
Average common shares outstanding
(thousands)........................ 217,227 217,227
|
See accompanying Notes to Unaudited Pro Forma Financial Statements.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF EARNINGS
FISCAL YEAR ENDED DECEMBER 27, 1996
UNAUDITED
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
PRO FORMA
CSX WITH
CSX PRO FORMA CONRAIL
HISTORICAL ADJUSTMENTS INVESTMENT (5)
---------- ----------- --------------
Operating revenue................... $10,536 $10,536
Operating expense................... 9,014 9,014
------- -------
Operating income ................... 1,522 1,522
Other income........................ 43 $ 70 /(3)/ 113
Interest expense.................... 249 285 /(2)/ 534
------- ------ -------
Earnings before income taxes........ 1,316 (215) 1,101
Income tax expense.................. 461 (96)/(4)/ 365
------- ------ -------
Net earnings........................ $ 855 $ (119) $ 736
======= ====== =======
Earnings per share.................. $4.00 $(0.55) $3.45
Average common shares outstanding
(thousands)........................ 213,633 213,633
|
See accompanying Notes to Unaudited Pro Forma Financial Statements.
NOTES TO UNAUDITED PRO FORMA FINANCIAL STATEMENTS
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
NOTE 1. PRELIMINARY CALCULATION OF PURCHASE PRICE
Pursuant to the CSX/NSC Agreement, CSX has invested approximately $4.156 billion (including $1.955 billion expended in November 1996, and excluding transaction costs) to acquire, through its ownership interest in Conrail, various Conrail routes and assets or rights thereto. The acquisition was financed with a combination of debentures and commercial paper. The purchase price has been preliminarily calculated as follows:
Estimated Conrail shares outstanding at May 23, 1997 (000's)...... 86,475
Less: Shares acquired pursuant to CSX's first tender offer (a).... (17,775)
Shares acquired pursuant to NSC's first tender offer............ (8,200)
--------
Shares acquired pursuant to Joint Tender Offer and merger....... 60,500
Joint Tender Offer and merger price per share..................... $ 115
--------
Cost of shares acquired pursuant to Joint Tender Offer and merg-
er............................................................. $ 6,958
Plus: Cost of shares acquired pursuant to CSX's first tender offer
(a).............................................................. 1,955
Cost of shares acquired pursuant to NSC's first tender offer.... 943
Unexercised Conrail stock options............................... 39
--------
Joint purchase price........................................... 9,895
CSX's allocation.................................................. 42%
--------
Joint purchase price payable by CSX............................. 4,156
Estimated transaction fees payable by CSX......................... 50
--------
Purchase price payable by CSX, including transaction fees......... 4,206
Less: Cost of shares held at March 28, 1997....................... (1,955)
--------
Pro forma adjustment to Conrail investment........................ 2,251
Pro forma adjustment for debt issuance costs...................... 50
--------
Pro forma adjustment to debt...................................... 2,301
Less: Current portion of commercial paper......................... (101)
--------
Pro forma adjustment to long-term debt............................ $ 2,200
========
|
NOTE 2. DEBT
Long-term debt has been increased by $2.2 billion and short-term debt has been increased by $0.1 billion to reflect the net additional borrowing subsequent to March 28, 1997 to finance the Company's purchase price (including transaction fees and debt issuance costs) in excess of the $1.955 billion previously paid. This net additional borrowing is inclusive of the proceeds of the $2.5 billion of Debentures, reduced by net repayments of commercial paper previously outstanding. As a consequence of the Company's first tender offer and its share of the subsequent Joint Tender Offer and merger, short-term and long-term debt of $4.256 billion is outstanding, as follows:
WEIGHTED-
AVERAGE INTEREST
PRINCIPAL RATE FOR PRO FORMA
AMOUNT ADJUSTMENT
--------- ------------------
Debentures...................................... $2,500 7.55% (fixed)
Commercial paper................................ 1,756 5.70% (variable)
------
Total debt incurred by CSX...................... $4,256 6.79%
======
|
Pro forma interest expense has been increased as a result of the additional debt incurred, as noted below. Debt placement fees, debt discount and related costs are being amortized on the interest method and, together
with annual commitment fees, approximate $7 million in the first year after consummation of the Joint Tender Offer. Inclusive of these costs, the effective interest rate is approximately 6.95%. If interest rates assumed were to change by one-eighth of one percent, the pro forma interest expense on variable rate debt associated with the transaction would vary by $2 million annually.
FISCAL QUARTER ENDED FISCAL YEAR ENDED
MAR. 28, 1997 DEC. 27, 1996
-------------------- -----------------
Effective interest on $4.256 billion
of debt............................ $ 74 $296
Less: interest already recognized in
historical financial statements*... (28) (11)
---- ----
Pro forma adjustment................ $ 46 $285
==== ====
|
NOTE 3. OTHER INCOME
The equity method of accounting will be applied to the Company's investment in Conrail throughout the period the investment is held in the voting trust. In accordance with APB Opinion No. 18, "The Equity Method of Accounting for Investments in Common Stock," other income includes 42% of Conrail's historical net income, adjusted for amortization, net of tax, of the difference between the Company's investment in Conrail and 42% of Conrail's underlying equity in net assets. The difference is primarily attributable to the estimated fair value of property and equipment, net of the related deferred taxes, and includes approximately $757 million in goodwill. This allocation is based on preliminary estimates of fair values of all Conrail assets and liabilities and is likely to change after the Definitive Documentation is finalized and regulatory approvals are obtained. To the extent that specific assets and liabilities are allocated to Conrail entities over which the Company will have a controlling financial interest, the allocation will be redesignated to follow the method in which the investment is accounted for subsequent to the approval by the STB. The preliminary estimates are also likely to change as additional information concerning fair values and remaining useful lives becomes available. An appraisal of the assets is currently underway. The Company intends to amortize any goodwill resulting from the purchase over a period of 40 years. Adjustments to property and equipment are depreciated over their estimated remaining useful lives, which range from 2 to 102 years.
PRELIMINARY ALLOCATION OF PURCHASE PRICE
Net assets of Conrail at March 31, 1997......................... $ 3,152
CSX's economic interest......................................... X 42%
--------
CSX's share of Conrail net assets............................... 1,324
Estimated fair value adjustments, principally property and
equipment...................................................... 3,480
Deferred taxes on estimated fair value adjustments and transac-
tion fees...................................................... (1,305)
Estimated goodwill.............................................. 757
--------
Purchase price payable by CSX (including transaction costs)... $ 4,256
========
|
DETAIL OF PRO FORMA ADJUSTMENT
FISCAL QUARTER FISCAL YEAR
ENDED ENDED
MAR. 28, 1997 DEC. 27, 1996
-------------- -------------
Conrail net income.......................... $ 61 $342
CSX's economic interest..................... X 42% X 42%
----- -----
Equity earnings from investment in
Conrail.................................. 26 144
Depreciation................................ (19) (77)
Amortization of goodwill (40-year life)..... (5) (19)
Tax benefit on depreciation................. 7 30
----- -----
Net impact on other income.................. 9 78
Less: dividend amounts previously recognized
(cost method).............................. (8) (8)
----- -----
Pro forma adjustment to Other Income (Ex-
pense)................................... $ 1 $ 70
===== =====
|
NOTE 4. INCOME TAX EXPENSE
Income tax expense includes the tax benefit on the additional interest expense (see Note 2) as well as the tax effect on equity income:
FISCAL QUARTER FISCAL YEAR
ENDED ENDED
MAR. 28, 1997 DEC. 27, 1996
-------------- -------------
Tax benefit on acquisition debt interest ex-
pense....................................... $(26) $(104)
Tax expense on dividends received............ 1 5
---- -----
Net tax benefit.............................. (25) (99)
Less tax benefit previously recognized....... (9) (3)
---- -----
Pro forma adjustment to income tax ex-
pense..................................... $(16) $ (96)
==== =====
|
NOTE 5. UNUSUAL EVENTS
As described in Note 3, pro forma amounts reflected in the Pro Forma Condensed Consolidated Statements of Earnings were calculated and presented in accordance with the equity method of accounting. If the effects of 42% of Conrail's after-tax merger-related costs of $14 million had been excluded for the fiscal quarter ended March 28, 1997, pro forma net earnings and pro forma earnings per share would have been $128 million and 59 cents, respectively. If the effects of 42% of Conrail's one-time after-tax charge of $83 million related to voluntary separation programs and after-tax merger-related costs of $10 million had been excluded for the fiscal year ended December 27, 1996, pro forma net earnings and pro forma earnings per share would have been $775 million and $3.63, respectively.
NOTE 6. SUMMARIZED CONSOLIDATED CONRAIL FINANCIAL DATA
Because of the numerous agreements that must be negotiated and completed, and because STB approval must be obtained, it is not possible to present some or most of the Company's investment in Conrail based on separate assets, liabilities and operations. However, the Company has a 42% economic interest in the entity formed to acquire Conrail Shares. It is expected that in some form, yet to be finally determined, the Company will have a primary operating interest in the routes and facilities, as described more fully in "The Company--Joint CSX/NSC Acquisition of Conrail". The following historical Conrail financial data, as of and for the quarter ended March 31, 1997 and the year ended December 31, 1996, respectively, is presented to facilitate an understanding of the Company's ultimate economic interest in Conrail:
CONRAIL INC.
SUMMARIZED CONSOLIDATED STATEMENT OF INCOME
(DOLLARS IN MILLIONS)
QUARTER ENDED YEAR ENDED
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
Revenues.................................... $906 $3,714
Operating expenses.......................... 790 3,113*
---- ------
Income from operations.................... 116 601
Interest expense............................ (45) (182)
Other income--net........................... 27 112
---- ------
Income before income taxes.................. 98 531
Income taxes.............................. 37 189
---- ------
Net income................................ $ 61 $ 342
==== ======
|
CONRAIL INC.
SUMMARIZED CONSOLIDATED BALANCE SHEET
(DOLLARS IN MILLIONS)
AS OF AS OF
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
ASSETS
Current assets.......................... $1,162 $1,117
Property and equipment.................. 6,599 6,590
Other assets............................ 709 695
------ ------
Total assets.......................... $8,470 $8,402
====== ======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities..................... $1,078 $1,092
Long-term debt.......................... 1,889 1,876
Other long-term liabilities............. 2,351 2,327
------ ------
Total liabilities..................... 5,318 5,295
Stockholders' equity.................... 3,152 3,107
------ ------
Total liabilities and stockholders'
equity............................... $8,470 $8,402
====== ======
|
THE EXCHANGE OFFERS
The Old Debentures were sold by the Company on May 6, 1997 (except for the Old 2032 Debentures which were sold on May 8, 1997) to the Initial Purchasers, who in turn sold the Old Debentures to a limited number of qualified institutional buyers and accredited investors pursuant to Rule 144A and Regulation D, respectively, under the Securities Act. In connection with the sale of the Old Debentures, the Company and the Initial Purchasers entered into a registration rights agreement dated as of May 6, 1997 (the "Registration Rights Agreement"), which requires the Company to file with the Commission a registration statement under the Securities Act with respect to the New Debentures of the Company, which are identical in all material respects to the Old Debentures, and to use its best efforts to cause such registration statement to become effective under the Securities Act. The Company is further obligated, upon the effectiveness of that registration statement, to offer the holders of the Old Debentures the opportunity to exchange their Old Debentures for a like principal amount of New Debentures, which will be issued without a restrictive legend and may be reoffered and resold by the holder without restrictions or limitations under the Securities Act. In the event certain circumstances occur which would result in either the New Debentures not becoming freely tradeable or certain holders of the Old Debentures not being eligible to participate in the Exchange Offer, then the Company is required to file a Shelf Registration Statement and use its best efforts to cause the Old Debentures to be registered under the Securities Act. A copy of the Registration Rights Agreement has been filed as an exhibit to the Registration Statement of which this Prospectus is a part. The Exchange Offers are being made pursuant to the Registration Rights Agreement to satisfy the Company's obligations thereunder. The term "Holder" with respect to the Exchange Offers means any person in whose name Old Debentures are registered on the security registrar's books or any other person who has obtained a properly completed assignment from the registered holder or any participant in the DTC system whose name appears on a security position listing as the holder of such Old Debentures and who desires to deliver such Old Debentures by book- entry transfer at DTC. See "Description of the New Debentures--Registration Rights Agreement."
Upon the terms and subject to the conditions set forth in this Prospectus and in the accompanying Letter of Transmittal (which together constitute the Exchange Offers), the Company will accept for exchange Old Debentures which are properly tendered on or prior to the Expiration Date and not withdrawn as permitted below. As used herein, the term "Expiration Date" means 5:00 p.m., New York City time, on , 1997; provided, however, that if the Company, in its sole discretion, has extended the period of time during which any or all of the Exchange Offers are open, the term "Expiration Date" means the latest time and date to which the applicable Exchange Offer is extended.
As of the date of this Prospectus, $350,000,000 aggregate principal amount of the Old 2002 Debentures, $300,000,000 aggregate principal amount of the Old 2004 Debentures, $450,000,000 aggregate principal amount of the Old 2007 Debentures, $400,000,000 aggregate principal amount of the Old 2017 Debentures, $500,000,000 aggregate principal amount of the Old 7.95% 2027 Debentures, $100,000,000 aggregate principal amount of the Old 6.95% 2027 Debentures, $250,000,000 aggregate principal amount of the Old 7.25% 2027 Debentures, and $150,000,000 aggregate principal amount of the Old 2032 Debentures, are outstanding. This Prospectus, together with the Letter of Transmittal, is first being sent on or about , 1997 to all Holders of Old Debentures known to the Company. The Company's obligation to accept Old Debentures for exchange pursuant to the Exchange Offers is subject to certain customary conditions as set forth under "--Certain Conditions to the Exchange Offers" below.
The Company expressly reserves the right, at any time or from time to time, to extend the period of time during which any or all of the Exchange Offers are open, and thereby delay acceptance for exchange of any Old Debentures, by giving oral or written notice of such extension to the Holders thereof as described below. During any such extension, all Old Debentures previously tendered will remain subject to the Exchange Offers and may be accepted for exchange by the Company. Any Old Debentures not accepted for exchange for any reason will be returned without expense to the tendering Holder thereof as promptly as practicable after the expiration or termination of the Exchange Offers.
Old Debentures tendered in the Exchange Offers must be in denominations of principal amount of $1,000 or any integral multiple thereof.
The Company expressly reserves the right to amend or terminate any or all of the Exchange Offers, and not to accept for exchange any Old Debentures not theretofore accepted for exchange, upon the occurrence of any of the conditions of the Exchange Offers specified below under "--Certain Conditions to the Exchange Offers." The Company will give oral or written notice of any extension, amendment, non-acceptance or termination to the Holders of the Old Debentures as promptly as practicable, such notice in the case of any extension to be issued by means of a press release or other public announcement no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date.
PROCEDURES FOR TENDERING OLD DEBENTURES
Only a Holder of Old Debentures may tender such Old Debentures in the Exchange Offers. The tender to the Company of Old Debentures by a Holder thereof as set forth below and the acceptance thereof by the Company will constitute a binding agreement between the tendering Holder and the Company upon the terms and subject to the conditions set forth in this Prospectus and in the accompanying Letter of Transmittal. A Holder who wishes to tender Old Debentures for exchange pursuant to any or all of the Exchange Offers must transmit a properly completed and duly executed Letter of Transmittal, including all other documents required by such Letter of Transmittal, to The Chase Manhattan Bank (the "Exchange Agent") at the address set forth below under "--Exchange Agent" or (in the case of a book-entry transfer) an Agent's Message in lieu of the Letter of Transmittal on or prior to the Expiration Date. In addition, either (i) certificates for such Old Debentures must be received by the Exchange Agent along with the Letter of Transmittal, (ii) a timely confirmation of a book-entry transfer (a "Book-Entry Confirmation") of such Old Debentures, if such procedure is available, into the Exchange Agent's account at The Depository Trust Company (the "Book-Entry Transfer Facility") pursuant to the procedure for book-entry transfer described below, must be received by the Exchange Agent prior to the Expiration Date, or (iii) the Holder must comply with the guaranteed delivery procedures described below (see "--Guaranteed Delivery Procedures").
THE METHOD OF DELIVERY OF OLD DEBENTURES, LETTERS OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF THE HOLDERS. INSTEAD OF DELIVERY BY MAIL, IT IS RECOMMENDED THAT HOLDERS USE AN OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO LETTERS OF TRANSMITTAL OR CERTIFICATES FOR OLD DEBENTURES SHOULD BE SENT TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OF OTHER NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS.
The term "Agent's Message" means a message, transmitted by the Book-Entry Transfer Facility to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the tendering participant, which acknowledgment states that such participant has received and agrees to be bound by the Letter of Transmittal and that the Company may enforce the Letter of Transmittal against such participant.
Any beneficial owner whose Old Debentures are registered in the name of a broker, dealer, commercial bank, trust company, or other nominee and who wishes to tender should contact the registered Holder promptly and instruct such registered Holder to tender on such beneficial owner's behalf. If such beneficial owner wishes to tender on such owner's own behalf, such owner must, prior to completing and executing the Letter of Transmittal and delivering such owner's Old Debentures, either make appropriate arrangements to register ownership of the Old Debentures in such beneficial owner's name or obtain a properly completed bond power from the registered Holder. The transfer of registered ownership may take considerable time.
Signatures on a Letter of Transmittal or a notice of withdrawal described below (see "--Withdrawal Rights"), as the case may be, must be guaranteed (see "--Guaranteed Delivery Procedures") unless the Old Debentures surrendered for exchange pursuant thereto are tendered (i) by a registered Holder of the Old Debentures who has not completed the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" on the Letter of Transmittal or (ii) for the account of an Eligible Institution (as defined below). In the event that signatures on a Letter of Transmittal or a notice of withdrawal, as the case may be, are required to be guaranteed, such guarantees must be by a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Program or the Stock Exchanges Medallion Program (collectively, "Eligible Institutions"). If Old Debentures are registered in the name of a person other than a signer of the Letter of Transmittal, the Old Debentures surrendered for exchange must be endorsed by or be accompanied by a written instrument or instruments of transfer or exchange, in satisfactory form as determined by the Company in its sole discretion, duly executed by the registered Holder exactly as the name or names of the registered Holder or Holders appear on the Old Debentures with the signature thereon guaranteed by an Eligible Institution.
All questions as to the validity, form, eligibility (including time of receipt) and acceptance of Old Debentures tendered for exchange will be determined by the Company in its sole discretion, which determination shall be final and binding. The Company reserves the absolute right to reject any and all tenders of any particular Old Debentures not properly tendered or not to accept any particular Old Debentures which acceptance might, in the judgment of the Company or its counsel, be unlawful. The Company also reserves the absolute right to waive any defects or irregularities or conditions of the Exchange Offers as to any particular Old Debentures either before or after the Expiration Date (including the right to waive the ineligibility of any Holder who seeks to tender Old Debentures in the Exchange Offers). The interpretation of the terms and conditions of the Exchange Offers as to any particular Old Debentures either before or after the Expiration Date (including the Letter of Transmittal and the instructions thereto) by the Company shall be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Old Debentures for exchange must be cured within such reasonable period of time as the Company shall determine. None of the Company, the Exchange Agent or any other person shall be under any duty to give notification of any defect or irregularity with respect to any tender of Old Debentures for exchange, nor shall any of them incur any liability for failure to give such notification.
If the Letter of Transmittal or any Old Debentures or powers of attorney are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such person should so indicate when signing and, unless waived by the Company, proper evidence satisfactory to the Company of their authority to so act must be submitted with the Letter of Transmittal.
By tendering, each Holder will represent to the Company that, among other things, the New Debentures acquired pursuant to the Exchange Offers are being obtained in the ordinary course of business of the person receiving such New Debentures, whether or not such person is the Holder, and that neither the Holder nor such other person has any arrangement or understanding with any person to participate in the distribution of the New Debentures. If any Holder or any such other person is an "affiliate," as defined under Rule 405 of the Securities Act, of the Company or is engaged in or intends to engage in, or has an arrangement or understanding with any person to participate in, a distribution of such New Debentures to be acquired pursuant to the Exchange Offers, such Holder or any such other person (i) may not rely on the applicable interpretation of the staff of the Commission and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. Each broker-dealer that receives New Debentures for its own account in exchange for Old Debentures, where such Old Debentures were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Debentures. See "Plan of Distribution." The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
ACCEPTANCE OF OLD DEBENTURES FOR EXCHANGE; DELIVERY OF NEW DEBENTURES
Upon satisfaction or waiver of all of the conditions to the Exchange Offers, the Company will accept on, or promptly after, the Expiration Date, all Old Debentures properly tendered and will issue the New Debentures promptly after acceptance of the Old Debentures. See "--Certain Conditions to the Exchange Offers" below. For purposes of the Exchange Offers, the Company will be deemed to have accepted properly tendered Old Debentures for exchange when, as and if the Company has given oral (promptly confirmed in writing) or written notice thereof to the Exchange Agent.
For each Old Debenture accepted for exchange, the Holder of such Old
Debenture will receive as set forth below under "Description of the New
Debentures--Book-Entry, Delivery and Form" a New Debenture having a principal
amount equal to that of the surrendered Old Debenture. Accordingly, registered
Holders of New Debentures on the relevant record date for the first interest
payment date following the consummation of the Exchange Offers will receive
interest accruing from the most recent date to which interest has been paid on
the Old Debentures or, if no interest has been paid, from May 1, 1997. Old
Debentures accepted for exchange will cease to accrue interest from and after
the date of consummation of the Exchange Offers. Holders whose Old Debentures
are accepted for exchange will not receive any payment in respect of accrued
interest on such Old Debentures otherwise payable on any interest payment date
the record date for which occurs on or after consummation of the Exchange
Offers. In the event that (i) by November 2, 1997 (or November 4, 1997 with
respect to the Old 2032 Debentures), neither the Exchange Offer Registration
Statement is declared effective nor (if the Exchange Offers are not permitted
as described above) the Shelf Registration Statement is filed with the
Commission, or (ii) by December 2, 1997 (or December 4, 1997 with respect to
the Old 2032 Debentures), one or more of the Exchange Offers with respect to
any series of Debentures is not consummated or the Shelf Registration
Statement is not declared effective with respect thereto (each such event
referred to in clauses (i) or (ii), a "Registration Default"), interest will
accrue on the applicable Old Debentures (in addition to stated interest on
such Old Debentures) from and including the next day following each such
Registration Default. In each case such additional interest (the "Special
Interest") will be payable in cash semiannually in arrears each May 1 and
November 1, at a rate per annum equal to 0.25% of the principal amount of such
Old Debentures for each such Registration Default. The aggregate amount of
Special Interest payable pursuant to the above provisions will in no event
exceed 0.25% per annum of the principal amount of such Old Debentures. Upon
(a) the effectiveness of the Exchange Offer Registration Statement or the
filing of the Shelf Registration Statement after the date set forth in clause
(i) above or (b) the consummation of the Exchange Offer for such Old
Debentures or the effectiveness of a Shelf Registration Statement, as the case
may be, after the date set forth in clause (ii) above, the Special Interest
payable on such Old Debentures as a result of the applicable Registration
Default will cease to accrue.
In all cases, issuance of New Debentures for Old Debentures that are accepted for exchange pursuant to the Exchange Offers will be made only after timely receipt by the Exchange Agent of certificates for such Old Debentures or a timely Book-Entry Confirmation of such Old Debentures into the Exchange Agent's account at the Book-Entry Transfer Facility, a properly completed and duly executed Letter of Transmittal or an Agent's Message in lieu thereof and all other required documents. If any tendered Old Debentures are not accepted for any reason set forth in the terms and conditions of the Exchange Offers or if Old Debentures are submitted for a greater principal amount than the Holder desires to exchange, such unaccepted or non-exchanged Old Debentures will be returned without expense to the tendering Holder thereof (or, in the cases of Old Debentures tendered by book-entry transfer into the Exchange Agent's account at the Book-Entry Transfer Facility pursuant to the book-entry procedures described below, such non-exchanged Old Debentures will be credited to an account maintained with such Book-Entry Transfer Facility) as promptly as practicable after the expiration or termination of the Exchange Offers.
BOOK-ENTRY TRANSFER
The Exchange Agent will make a request to establish an account with respect to the Old Debentures at the Book-Entry Transfer Facility for purposes of the Exchange Offers within two business days after the date of this
Prospectus unless the Exchange Agent already has established an account with the Book-Entry Transfer Facility suitable for the Exchange Offers, and any financial institution that is a participant in the Book-Entry Transfer Facility's systems may make book-entry delivery of Old Debentures by causing the Book-Entry Transfer Facility to transfer such Old Debentures into the Exchange Agent's account at the Book-Entry Transfer Facility in accordance with such Book-Entry Transfer Facility's procedures for transfer. However, although delivery of Old Debentures may be effected through book-entry transfer at the Book-Entry Transfer Facility, the Letter of Transmittal or a facsimile thereof, with any required signature guarantees or an Agent's Message in lieu thereof and any other required documents, must, in any case, be transmitted to and received by the Exchange Agent at the address set forth below under "--Exchange Agent" on or prior to the Expiration Date or the guaranteed procedures described below must be complied with.
GUARANTEED DELIVERY PROCEDURES
If a registered Holder of the Old Debentures desires to tender such Old Debentures and time will not permit such Holder's Old Debentures or other required documents to reach the Exchange Agent before the Expiration Date, or the procedure for book-entry transfer cannot be completed on a timely basis, a tender may be effected if (i) the tender is made through an Eligible Institution, (ii) on or prior to 5:00 p.m., New York City time, on the Expiration Date, the Exchange Agent receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by the Company (by telegram, telex, facsimile transmission, mail or hand delivery), setting forth the name and address of the Holder of Old Debentures and the amount of Old Debentures tendered, stating that the tender is being made thereby and guaranteeing that within three New York Stock Exchange ("NYSE") trading days after the date of execution of the Notice of Guaranteed Delivery, the certificates for all physically tendered Old Debentures, in proper form for transfer, or a Book- Entry Confirmation, as the case may be, together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof) with any required signature guarantees and any other documents required by the Letter of Transmittal will be deposited by the Eligible Institution with the Exchange Agent, and (iii) the certificates for all physically tendered Old Debentures, in proper form for transfer, or a Book-Entry Confirmation, as the case may be, together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof) with any required signature guarantees, and any other documents required by the Letter of Transmittal are deposited by the Eligible Institution within three NYSE trading days after the date of execution of the Notice of Guaranteed Delivery.
WITHDRAWAL RIGHTS
Tenders of Old Debentures may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date. For a withdrawal to be effective, a written notice or facsimile transmission notice of withdrawal must be received by the Exchange Agent at the address set forth below under "-- Exchange Agent." Any such notice of withdrawal must specify the name of the person having tendered the Old Debentures to be withdrawn, identify the Old Debentures to be withdrawn (including the principal amount of such Old Debentures), and (where certificates for Old Debentures have been transmitted) specify the name in which such Old Debentures are registered, if different from that of the withdrawing Holder. If certificates for Old Debentures have been delivered or otherwise identified to the Exchange Agent, then, prior to the release of such certificates the withdrawing Holder must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an Eligible Institution unless such Holder is an Eligible Institution in which case such guarantee will not be required. If Old Debentures have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Old Debentures and otherwise comply with the procedures of such facility. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination will be final and binding on all parties. Any Old Debentures so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offers. Any Old Debentures which have been
tendered for exchange but which are not exchanged for any reason will be returned to the Holder thereof without cost to such Holder (or, in the case of Old Debentures tendered by book-entry transfer into the Exchange Agent's account at the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures described above, such Old Debentures will be credited to an account maintained with such Book-Entry Transfer Facility for the Old Debentures) as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offers. Properly withdrawn Old Debentures may be retendered by following one of the procedures described under "--Procedures for Tendering Old Debentures" above at any time on or prior to the Expiration Date.
CERTAIN CONDITIONS TO THE EXCHANGE OFFERS
Notwithstanding any other provisions of the Exchange Offers, and subject to its obligations pursuant to the Registration Rights Agreement, the Company shall not be required to accept for exchange, or to issue New Debentures in exchange for, any Old Debentures and may terminate or amend any or all of the Exchange Offers, if at any time before the acceptance of such New Debentures for exchange, any of the following events shall occur:
(i) any injunction, order or decree shall have been issued by any court or any governmental agency that would prohibit, prevent or otherwise materially impair the ability of the Company to proceed with any of the respective Exchange Offers; or
(ii) the Exchange Offers will violate any applicable law or any applicable interpretation of the staff of the Commission.
The foregoing conditions are for the sole benefit of the Company and may be asserted by the Company in whole or in part at any time and from time to time upon advice of outside counsel. The failure by the Company at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and such right shall be deemed an ongoing right which may be asserted at any time and from time to time.
In addition, the Company will not accept for exchange any Old Debentures tendered and no New Debentures will be issued in exchange for any such Old Debentures, if at such time any stop order is threatened by the Commission or in effect with respect to the Registration Statement of which this Prospectus is a part or the qualification of the Indenture with respect to the New Debentures under the Trust Indenture Act of 1939, as amended.
The Exchange Offer is not conditioned on any minimum principal amount of Old Debentures being tendered for exchange.
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as the Exchange Agent for the Exchange Offers. All executed Letters of Transmittal should be directed to the Exchange Agent at the address set forth below. Questions and requests for assistance, requests for additional copies of this Prospectus or of the Letter of Transmittal and requests for Notices of Guaranteed Delivery should be directed to the Exchange Agent addressed as follows:
The Chase Manhattan Bank, Exchange Agent
By Mail, Overnight Courier or Hand Delivery:
450 West 33rd Street
15th Floor
New York, New York 10001-2697
Attention: Ronald J. Halleran
By Facsimile:
212-946-8158
212-946-8159
Confirm by Telephone:
212-946-3068
DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF SUCH LETTER OF TRANSMITTAL.
FEES AND EXPENSES
The Company will not make any payment to brokers, dealers or others soliciting acceptances of the Exchange Offers.
The expenses to be incurred in connection with the Exchange Offers will be paid by the Company. Such expenses include registration fees, fees and expenses of the Exchange Agent and Trustee, accounting and legal fees and printing costs, among others.
TRANSFER TAXES
Holders who tender their Old Debentures for exchanges will not be obligated to pay any transfer taxes in connection therewith, except that Holders who instruct the Company to register New Debentures in the name of, or request that Old Debentures not tendered or not accepted in the Exchange Offers be returned to, a person other than the registered tendering Holder will be responsible for the payment of any applicable transfer tax thereon.
CONSEQUENCES OF FAILURE TO EXCHANGE OLD DEBENTURES
Holders of Old Debentures who do not exchange their Old Debentures for New Debentures pursuant to the Exchange Offers will continue to be subject to the provisions in the Old Debentures regarding transfer and exchange of the Old Debentures and the restrictions on transfer of such Old Debentures as set forth in the legend thereon as a consequence of the issuance of the Old Debentures pursuant to exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, the Old Debentures may not be offered or sold, unless registered under the Securities Act and applicable state securities laws. The Company does not currently anticipate that it will register under the Securities Act Old Debentures not tendered. See "Description of the New Debentures--Registration Rights Agreement."
Based on interpretations by the staff of the Commission, as set forth in no- action letters issued to third parties, the Company believes that New Debentures issued pursuant to the Exchange Offers in exchange for Old Debentures may be offered for resale, resold or otherwise transferred by Holders thereof (other than any such Holder which is an "affiliate" of the Company within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Debentures are acquired in the ordinary course of such Holders' business and such Holders, other than broker-dealers, have no arrangement or understanding with any person to participate in the distribution of such New Debentures. However, the Commission has not considered the Exchange Offers in the context of a no-action letter and there can be no assurance that the staff of the Commission would make a similar determination with respect to the Exchange Offers as in such other circumstances. Each Holder, other than a broker-dealer, must acknowledge that it is not engaged in, and does not intend to engage in, a distribution of such New Debentures and has no arrangement or understanding to participate in a distribution of New Debentures. If any Holder is an affiliate of the Company or is engaged in or intends to engage in or has any arrangement or understanding with respect to the distribution of the New Debentures to be acquired pursuant to the Exchange Offers, such Holder (i) may not rely on the applicable interpretations of the staff of the Commission and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. Each broker-dealer that receives New Debentures for its own account in exchange for Old Debentures pursuant to the Exchange Offers must acknowledge that such Old Debentures were acquired by such broker-dealer as a result of market-making activities or other trading activities and that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Debentures. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Debentures received in exchange for Old Debentures where such Old Debentures were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that for a period of 180 days after the Expiration Date, it will make this Prospectus available to any broker-dealer for use in connection with any such laws of certain jurisdictions, if applicable, where the New Debentures may not be offered or sold unless they have been registered or qualified for sale in such jurisdictions or any exemption from registration or qualification is available and is complied with. The Company has agreed, pursuant to the Registration Rights Agreement, subject to certain limitations specified therein, to register or qualify the New Debentures for offer or sale under the securities laws of such jurisdictions as any Holder reasonably requests in writing. Unless a Holder so requests, the Company does not currently intend to register or qualify the sale of the New Debentures in any such jurisdictions.
DESCRIPTION OF NEW DEBENTURES
GENERAL
The Old Debentures were issued under the Indenture and the New Debentures also will be issued under the Indenture. Each series of Old Debentures and the corresponding series of New Debentures will be treated as a single series of securities under the Indenture. The following summary of certain provisions of the Indenture does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the Indenture, including the definitions of certain terms therein and those terms made a part thereof by the Trust Indenture Act of 1939, as amended. A copy of the Indenture is available from the Company upon request. Whenever defined terms of the Indenture not otherwise defined herein are referred to, such defined terms are incorporated herein by reference. The term "Debentures" means the New Debentures and the Old Debentures treated as a single class.
The Indenture does not limit the aggregate principal amount of securities that can be issued thereunder. Securities may be issued in one or more series as may be authorized from time to time by the Company. Ten series of securities, including the Debentures, are currently outstanding under the Indenture.
Payments of interest on the Debentures may be made at the option of the Company by check mailed to the registered holders thereof or, at the option of a holder, by wire transfer to an account maintained by the payee with a bank located in the United States designated by such holder.
The Debentures may be transferred or exchanged at an office or agency to be maintained by the Company, subject to the limitations provided in the Indenture, without the payment of any service charge, other than any tax or governmental charge payable in connection therewith. Each series of Debentures is issuable in denominations of $1,000 and multiples thereof.
All moneys deposited with the Trustee or any Paying Agent, or held by the Company, in trust for the payment of principal of or interest on any Debentures and remaining unclaimed at the end of two years after such principal or interest shall have become due and payable will be repaid to the Company, and the holders of such Debentures will thereafter look only to the Company for payment thereof.
CERTAIN TERMS OF THE 2002 DEBENTURES
The 2002 Debentures will be limited to $350 million aggregate principal amount and will mature on May 1, 2002. The 2002 Debentures will bear interest at the rate of 7.05% per annum from May 1, 1997, payable semiannually in arrears on May 1 and November 1 of each year, commencing November 1, 1997, to the persons in whose names the 2002 Debentures are registered at the close of business on the preceding April 15 or October 15, each a record date, as the case may be. If an Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall not be postponed; provided, however, that any payment required to be made on such date that is not a Business Day need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and no additional interest shall accrue as a result of such delayed payment. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The 2002 Debentures will not be subject to any sinking fund.
CERTAIN TERMS OF THE 2004 DEBENTURES
The 2004 Debentures will be limited to $300 million aggregate principal amount and will mature on May 1, 2004. The 2004 Debentures will bear interest at the rate of 7.25% per annum from May 1, 1997, payable semiannually in arrears on May 1 and November 1 of each year, commencing November 1, 1997, to the persons in whose names the 2004 Debentures are registered at the close of business on the preceding April 15 or October 15, each a record date, as the case may be. If an Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall not be postponed; provided, however, that any payment required to be made on such date that is not a Business Day need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and no additional interest shall
accrue as a result of such delayed payment. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The 2004 Debentures will not be subject to any sinking fund.
CERTAIN TERMS OF THE 2007 DEBENTURES
The 2007 Debentures will be limited to $450 million aggregate principal amount and will mature on May 1, 2007. The 2007 Debentures will bear interest at the rate of 7.45% per annum from May 1, 1997, payable semiannually in arrears on May 1 and November 1 of each year, commencing November 1, 1997, to the persons in whose names the 2007 Debentures are registered at the close of business on the preceding April 15 or October 15, each a record date, as the case may be. If an Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall not be postponed; provided, however, that any payment required to be made on such date that is not a Business Day need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and no additional interest shall accrue as a result of such delayed payment. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The 2007 Debentures will not be subject to any sinking fund.
CERTAIN TERMS OF THE 2017 DEBENTURES
The 2017 Debentures will be limited to $400 million aggregate principal amount and will mature on May 1, 2017. The 2017 Debentures will bear interest at the rate of 7.90% per annum from May 1, 1997, payable semiannually in arrears on May 1 and November 1 of each year, commencing November 1, 1997, to the persons in whose names the 2017 Debentures are registered at the close of business on the preceding April 15 or October 15, each a record date, as the case may be. If an Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall not be postponed; provided, however, that any payment required to be made on such date that is not a Business Day need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and no additional interest shall accrue as a result of such delayed payment. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The 2017 Debentures will not be subject to any sinking fund.
CERTAIN TERMS OF THE 7.95% 2027 DEBENTURES
The 7.95% 2027 Debentures will be limited to $500 million aggregate principal amount and will mature on May 1, 2027. Such Debentures will bear interest at the rate of 7.95% per annum from May 1, 1997, payable semiannually in arrears on May 1 and November 1 of each year, commencing November 1, 1997, to the persons in whose names the 7.95% 2027 Debentures are registered at the close of business on the preceding April 15 or October 15, each a record date, as the case may be. If an Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall not be postponed; provided, however, that any payment required to be made on such date that is not a Business Day need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and no additional interest shall accrue as a result of such delayed payment. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The 7.95% 2027 Debentures will not be subject to any sinking fund.
CERTAIN TERMS OF THE 6.95% 2027 DEBENTURES
The 6.95% 2027 Debentures will be limited to $100 million aggregate principal amount and will mature on May 1, 2027. Such Debentures will bear interest at the rate of 6.95% per annum from May 1, 1997, payable semiannually in arrears on May 1 and November 1 of each year, commencing November 1, 1997, to the persons in whose names the 6.95% 2027 Debentures are registered at the close of business on the preceding April 15 or October 15, each a record date, as the case may be. If an Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall not be postponed; provided, however, that any payment required to be made on such date that is not a Business Day need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and no additional interest shall accrue as a result of such delayed payment. Interest will be computed on the basis of a 360-day
year consisting of twelve 30-day months. The 6.95% 2027 Debentures will not be subject to any sinking fund, but are subject to repurchase at the option of the holder. See "--Purchase at Option of Holder."
CERTAIN TERMS OF THE 7.25% 2027 DEBENTURES
The 7.25% 2027 Debentures will be limited to $250 million aggregate principal amount and will mature on May 1, 2027. Such Debentures will bear interest at the rate of 7.25% per annum from May 1, 1997, payable semiannually in arrears on May 1 and November 1 of each year, commencing November 1, 1997, to the persons in whose names the 7.25% 2027 Debentures are registered at the close of business on the preceding April 15 or October 15, each a record date, as the case may be. If an Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall not be postponed; provided, however, that any payment required to be made on such date that is not a Business Day need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and no additional interest shall accrue as a result of such delayed payment. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The 7.25% 2027 Debentures will not be subject to any sinking fund, but are subject to repurchase at the option of the holder. See "--Purchase at Option of Holder."
CERTAIN TERMS OF THE 2032 DEBENTURES
The 2032 Debentures will be limited to $150 million aggregate principal amount and will mature on May 1, 2032. The 2032 Debentures will bear interest at the rate of 8.30% per annum from May 1, 1997, payable semiannually in arrears on May 1 and November 1 of each year, commencing November 1, 1997, to the persons in whose names the 2032 Debentures are registered at the close of business on the preceding April 15 or October 15, each a record date, as the case may be. If an Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall not be postponed; provided, however, that any payment required to be made on such date that is not a Business Day need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and no additional interest shall accrue as a result of such delayed payment. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The 2032 Debentures will not be subject to any sinking fund, but are subject to redemption at the option of the Company. See "--Redemption."
REDEMPTION
Other than the 2032 Debentures, none of the other series of Debentures is subject to redemption prior to maturity.
The 2032 Debentures are not redeemable prior to May 1, 2007. On or after May 1, 2007 and prior to maturity, the Company, at its option, may redeem all or, from time to time, any part of the 2032 Debentures on at least 30 days' but not more than 60 days' notice, as provided in the Indenture, at the following redemption prices (expressed in percentages of the principal amount) during the 12-month periods beginning May 1:
2007............................................................. 104.150% 2008............................................................. 103.735% 2009............................................................. 103.320% 2010............................................................. 102.905% 2011............................................................. 102.490% 2012............................................................. 102.075% 2013............................................................. 101.660% 2014............................................................. 101.245% 2015............................................................. 100.830% 2016............................................................. 100.415% |
and thereafter at 100%, together in each case with accrued interest to the date fixed for redemption.
PURCHASE AT OPTION OF HOLDER
Each holder of 6.95% 2027 Debentures and each holder of 7.25% 2027 Debentures will have the right to require the Company to repurchase all or a portion of such series of Debentures owned by such holder (the "Put Option") on May 1, 2002 and May 1, 2005, respectively (the "Put Option Exercise Date"), at a purchase price equal to 100% of the principal amount of such Debentures tendered by such holder plus accrued interest thereon. On and after the Put Option Exercise Date, interest will cease to accrue on such Debentures or any portion thereof tendered for repayment. On or before the Put Option Exercise Date, the Company shall deposit with a paying agent (or the Trustee) money sufficient to pay the principal of and any accrued interest on such Debentures to be tendered for repayment.
A holder must provide the Company with notice of such holder's intention to exercise the Put Option during the period from and including March 1, 2002 through and including April 1, 2002 (with respect to the 6.95% 2027 Debentures) and the period from and including March 1, 2005 through and including April 1, 2005 (with respect to the 7.25% 2027 Debentures). Such notice, once given, will be irrevocable unless waived by the Company.
The Company will comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act if required and will file Schedule 13E-4 or any other schedule if required thereunder in connection with any offer by the Company to purchase the 6.95% 2027 Debentures or the 7.25% 2027 Debentures.
RANKING
The Debentures will be senior securities of the Company and the indebtedness evidenced thereby will rank pari passu with all other unsubordinated and unsecured indebtedness of the Company.
CERTAIN COVENANTS AND AGREEMENTS OF THE COMPANY
The Indenture does not limit the amount of indebtedness or lease obligations that may be incurred by the Company and its subsidiaries. The Indenture does not contain provisions which would give holders of the Debentures the right to require the Company to repurchase their Debentures in the event of a decline in the credit rating of the Company's debt securities resulting from a takeover, recapitalization or similar restructuring.
Limitation on Liens on Stock or Indebtedness of Principal Subsidiaries
The Indenture provides that, with respect to the Debentures, the Company may not, nor may it permit any Subsidiary to, create, assume, incur or suffer to exist any mortgage, pledge, lien, encumbrance, charge or security interest of any kind upon any stock or indebtedness, whether owned on the date of the Indenture or thereafter acquired, of any Principal Subsidiary, to secure any Obligation (other than the Debentures) of the Company, any Subsidiary or any other Person, without in any such case making effective provision whereby all of the outstanding Debentures (and other outstanding debt securities issued from time to time pursuant to the Indenture) shall be directly secured equally and ratably with such Obligation. This provision does not restrict any other property of the Company or its Subsidiaries. The Indenture defines "Obligation" as indebtedness for money borrowed or indebtedness evidenced by a bond, note, debenture or other evidence of indebtedness; "Principal Subsidiary" as CSXT, Sea-Land and ACL; and "Subsidiary" as a corporation a majority of the outstanding voting stock of which is owned, directly or indirectly, by the Company or one or more Subsidiaries, or by the Company and one or more Subsidiaries. The Indenture does not prohibit the sale by the Company or any Subsidiary of any stock or indebtedness of any Subsidiary.
Consolidation, Merger and Sale of Assets
The Indenture provides that the Company may, without the consent of the holders of any of the outstanding Debentures of a series, consolidate with, merge into or transfer its assets substantially as an entirety to any
corporation organized under the laws of any domestic or foreign jurisdiction, provided that (i) the successor corporation assumes the due and punctual payment of the principal of and interest on all debt securities issued under the Indenture and the performance of every covenant of the Indenture, (ii) immediately after giving effect thereto, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing, and (iii) certain other conditions are met.
EVENTS OF DEFAULT AND REMEDIES
An Event of Default with respect to the Debentures of any series is defined in the Indenture as being a:
(a) default in the payment of any interest upon any Debenture of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Debenture of that series at its Maturity; or
(c) default in the performance, or breach, of any covenant or warranty of the Company in the Indenture (other than a covenant or warranty a default in the performance of which or the breach of which is elsewhere specifically dealt with or which has expressly been included in the Indenture solely for the benefit of series of Debentures other than that series), and continuance of such default or breach for a period of 90 days after there has been given written notice of such default to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in principal amount of the outstanding Debentures of that series; or
(d) certain events of bankruptcy, insolvency or reorganization of the Company.
No Event of Default with respect to any particular series of Debentures necessarily constitutes an Event of Default with respect to any other series of Debentures. The Indenture provides that the Trustee thereunder may withhold notice to the holders of the Debentures of the occurrence of a default with respect to such Debentures (except a default in payment of principal, premium, if any, or interest) if the Trustee in good faith determines it is in the interest of the holders to do so.
The Indenture provides that if an Event of Default with respect to any Debentures of any series then outstanding issued thereunder shall occur and be continuing, either the Trustee or the holders of not less than 25% in aggregate principal amount of such Debentures then outstanding may declare the principal amount of all such Debentures of that series to be due and payable immediately, but upon certain conditions such declaration may be rescinded and annulled by the holders of a majority in aggregate principal amount of such Debentures then outstanding.
Subject to the provisions of the Trust Indenture Act of 1939, as amended, requiring each Trustee, during an Event of Default under the relevant Indenture, to act with the requisite standard of care, the Trustee is under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the holders of any Debentures unless such holders have offered the Trustee reasonable indemnity. Subject to the foregoing, holders of a majority in aggregate principal amount of Debentures of any series then outstanding issued under the Indenture shall have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee under the Indenture with respect to such Debentures. The Indenture requires the annual filing by the Company with the Trustee of a certificate as to whether or not the Company is in default under the terms of the Indenture.
BOOK-ENTRY, DELIVERY AND FORM
Except as described below, each series of Debentures sold will be issued in the form of one or more Global Securities. The Global Securities will be deposited with, or on behalf of, the Depositary and registered in the name of the Depositary or its nominee. Except as set forth below, the Global Securities may be transferred, in whole and not in part, only to the Depositary or another nominee of the Depositary. Investors may hold their
beneficial interests in the Global Securities directly through the Depositary if they have an account with the Depositary or indirectly through organizations which have accounts with the Depositary.
Debentures (i) originally purchased by or transferred to institutional "accredited investors" who are not QIBS or (ii) except as described below, purchased by or transferred to Persons outside the United States pursuant to sales in accordance with Regulation S under the Securities Act (collectively referred to herein as the "Non-Global Purchasers"), will be in registered form without interest coupons ("Certificated Debentures"). Upon the transfer to a QIB of Certificated Debentures initially issued to a Non-Global Purchaser, such Certificated Debentures will be exchanged for an interest in the Global Security. For a description of the restrictions on transfer of Certificated Debentures, see "Notice to Investors."
Debentures originally purchased by persons outside the United States pursuant to sales in accordance with Regulation S under the Securities Act will be represented upon issuance by a temporary global Debenture certificate in fully registered form without interest coupons (the "Temporary Certificate") which will not be exchangeable for Certificated Debentures until the expiration of the "40-day restricted period" within the meaning of Rule 903(c)(3) of Regulation S under the Securities Act. The Temporary Certificate will be registered in the name of, and held by, a temporary certificate holder until the expiration of such 40-day period, at which time the Temporary Certificate will be delivered to the Trustee in exchange for Certificated Debentures registered in the names requested by such temporary certificate holder. In addition, until the expiration of such 40-day period, transfers of interests in the Temporary Certificate can only be effected through such temporary certificate holder in accordance with the requirements set forth in "Notice to Investors."
The Depositary has advised the Company as follows: The Depositary is a limited-purpose trust company and organized under the laws of the State of New York, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and "a clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. The Depositary was created to hold securities of institutions that have accounts with the Depositary ("participants") and to facilitate the clearance and settlement of securities transactions among its participants in such securities through electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. The Depositary's participants include securities brokers and dealers (which may include the Initial Purchasers), banks, trust companies, clearing corporations and certain other organizations. Access to the Depositary's book-entry system is also available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, whether directly or indirectly ("indirect participants").
Upon the issuance of the Global Securities, the Depositary or its custodian will credit, on its book-entry registration and transfer system, the principal amount of the Debentures represented by such Global Securities to the accounts of participants. The accounts to be credited shall be designated by the Initial Purchasers (as defined below) of such series of Debentures. Ownership of beneficial interests in the Global Securities will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests in the Global Securities will be shown on, and the transfer of those ownership interests will be effected only through, records maintained by the Depositary or its nominee (with respect to participants' interests) and such participants (with respect to the owners of beneficial interests in the Global Securities other than participants). The laws of some jurisdictions may require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and laws may impair the ability to transfer or pledge beneficial interests in the Global Securities.
So long as the Depositary, or its nominee, is the registered holder and owner of the Global Securities, the Depositary or such nominee, as the case may be, will be considered the sole legal owner and holder of the related Debentures for all purposes of such Debentures and the Indenture. Except as set forth below, owners of beneficial interests in the Global Securities will not be entitled to have the Debentures represented by the Global Securities registered in their names, will not receive or be entitled to receive physical delivery of certificated Debentures in definitive form and will not be considered to be the owners or holders of any Debentures under the Global
Securities. The Company understands that under existing industry practice, in the event an owner of a beneficial interest in the Global Securities desires to take any action that the Depositary, as the holder of the Global Securities, is entitled to take, the Depositary would authorize the participants to take such action, and that the participants would authorize beneficial owners owning through such participants to take such action or would otherwise act upon the instructions of beneficial owners owning through them.
Payment of principal of and interest on Debentures represented by the Global Securities registered in the name of and held by the Depositary or its nominee will be made to the Depositary or its nominee, as the case may be, as the registered owner and holder of the Global Securities.
The Company expects that the Depositary or its nominee, upon receipt of any payment of principal of or interest on the Global Securities, will credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the Global Securities as shown on the records of the Depositary or its nominee. The Company also expects that payments by participants to owners of beneficial interests in the Global Securities held through such participants will be governed by standing instructions and customary practices and will be the responsibility of such participants. The Company will not have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the Global Securities for any Debentures or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests or for any other aspect of the relationship between the Depositary and its participants or the relationship between such participants and the owners of beneficial interests in the Global Securities owning through such participants.
Unless and until exchanged in whole or in part for certificated Debentures in definitive form, the Global Securities for each series of Debentures may not be transferred except as a whole by the Depositary to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any nominee to a successor of the Depositary or a nominee of such successor.
Although the Depositary has agreed to the foregoing procedures in order to facilitate transfers of interests in the Global Securities among participants of the Depositary, it is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. Neither the Trustee nor the Company will have any responsibility for the performance by the Depositary or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
The Global Securities representing the Debentures are exchangeable for definitive Debentures in registered form, of like tenor and of an equal aggregate principal amount, only if (x) the Depositary notifies the Company that it is unwilling, unable or ineligible to continue as Depositary for such Global Securities or if at any time the Depositary ceases to be a clearing agency registered under the Exchange Act, (y) the Company in its sole discretion determines that the Global Securities representing the Debentures shall be exchangeable for definitive Debentures in registered form or (z) any event shall have happened and be continuing which, after notice or lapse of time, or both, would become an Event of Default with respect to such Debentures. In the event that any Global Security representing the Debentures is exchangeable pursuant to the preceding sentence, it shall be exchangeable in whole for definitive Debentures in registered form, of like tenor and of an equal aggregate principal amount, in denominations of $1,000 and integral multiples thereof. Such definitive Debentures shall be registered in the name or names of such person or persons as the Depositary shall instruct the security registrar. It is expected that such instructions may be based upon directions received by the Depositary from its participants with respect to ownership of Debentures.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the relevant series of Debentures, as the case may be, then outstanding and affected by a modification or amendment, to modify or amend any of the provisions of the Indenture or of such Debentures or the rights of the holders of such Debentures under the Indenture, provided
that no such modification or amendment shall, without the consent of each holder of each outstanding Debenture affected thereby:
(i) change the Stated Maturity of the principal of, or any installment of interest on, any such Debenture or reduce the principal amount thereof or any premium thereon, or reduce the rate of interest thereon, or change the coin or currency in which any Debenture or any premium or interest thereon is payable, or impair the holder's right to institute suit to enforce the payment of any such Debentures on or after the Stated Maturity,
(ii) reduce the aforesaid percentage in principal amount of such Debentures, the consent of the holders of which is required for any such modification or amendment or the consent of whose holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) or reduce the requirements for a quorum or voting at a meeting of holders of such Debentures,
(iii) change any obligation of the Company to maintain an office or agency in the places and for the purposes required by the Indenture, or
(iv) modify any of the above provisions.
The Indenture also contains provisions permitting the Company and the Trustee, without the consent of the holders of such Debentures issued thereunder, to modify or amend the Indenture in order, among other things:
(a) to add any additional Events of Default or add to the covenants of the Company for the benefit of the holders of all or any series of Debentures issued under the Indenture;
(b) to establish the form or terms of Debentures of any series;
(c) to cure any ambiguity, to correct or supplement any provision therein which may be inconsistent with any other provision therein, or to make any other provisions with respect to matters or questions arising under the Indenture which shall not adversely affect the interests of the holders of any debt securities issued thereunder in any material respect; or
(d) to change or eliminate any of the provisions of the Indenture, provided that any such change or elimination shall become effective only when there is no debt security outstanding of any series issued under the Indenture created prior to the execution of the supplemental indenture which is entitled to the benefit of such provision.
The holders of at least a majority in aggregate principal amount of outstanding Debentures of a series may, on behalf of the holders of Debentures of that series, waive compliance by the Company with certain restrictive provisions of the Indenture, including the covenant described above under "Certain Covenants of the Company--Limitation on Liens on Stock or Indebtedness of Principal Subsidiaries." The holders of not less than a majority in aggregate principal amount of such outstanding Debentures of any series may, on behalf of all holders of such series of Debentures, waive any past default under the Indenture with respect to such Debentures and its consequences, except a default in the payment of the principal of, premium, if any, or interest on such Debentures or in respect of a covenant or provision which cannot be modified or amended without the consent of the holder of each outstanding Debenture affected.
The Indenture contains provisions for convening meetings of the holders of the Debentures of any series. A meeting may be called at any time by the Trustee, and also, upon request, by the Company or the holders of at least 10% in aggregate principal amount of the outstanding Debentures of any series, in any such case upon notice given in accordance with the provisions of the Indenture. Except for any consent which must be given by the holder of each outstanding Debenture affected thereby, as described above, any resolution presented at a meeting or adjourned meeting duly reconvened at which a quorum (as described below) is present may be adopted by the affirmative vote of the holders of a majority in principal amount of such outstanding Debentures of that series; provided, however, that any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which may be made, given or taken by the holders of a specified
percentage, which is less than a majority, in principal amount of such outstanding Debentures may be adopted at a meeting or adjourned meeting duly reconvened at which a quorum is present by the affirmative vote of the holders of such specified percentage in principal amount of such outstanding Debentures. Any resolution passed or decision taken at any meeting of holders of Debentures of any series duly held in accordance with the Indenture will be binding on all holders of such Debentures. The quorum required for any meeting called to adopt a resolution, and at any reconvened meeting, will be persons holding or representing a majority in principal amount of such outstanding Debentures, subject to certain exceptions.
SATISFACTION AND DISCHARGE OF THE INDENTURE; DEFEASANCE
The Indenture shall generally cease to be of any further effect if (a) the Company has delivered to the Trustee for cancellation all debt securities issued thereunder or (b) all debt securities issued thereunder not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year, and the Company shall have deposited with the Trustee as trust funds the entire amount sufficient to pay and discharge at Stated Maturity or upon redemption the entire indebtedness on all debt securities issued thereunder (and if, in either case, the Company has paid or caused to be paid all other sums payable under the Indenture by the Company and the Company has delivered an officers' certificate and an opinion of counsel each stating that the requisite conditions have been complied with).
In addition, the Company shall have a "legal defeasance option" (pursuant to which it may terminate, with respect to any series of Debentures, all of its obligations under such Debentures and the Indenture with respect to such Debentures) and a "covenant defeasance option" (pursuant to which it may terminate, with respect to any series of Debentures, its obligations with respect to such Debentures under certain specified covenants contained in the Indenture, including its obligations described under "Limitation on Liens on Stock and Indebtedness of Principal Subsidiaries"). If the Company exercises its legal defeasance option with respect to any series of Debentures, payment of such Debentures may not be accelerated because of an Event of Default. If the Company exercises its covenant defeasance option with respect to any series of Debentures, payment of such Debentures may not be accelerated because of an Event of Default related to the specified covenants. The Company may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
The Company may exercise its legal defeasance option or its covenant defeasance option with respect to any series of Debentures, only if (a) the Company irrevocably deposits in trust with the Trustee cash and/or U.S. Government Obligations for the payment of principal, premium, if any, and interest with respect to such Debentures to maturity or redemption, as the case may be, and the Company delivers to the Trustee a certificate from a nationally recognized firm of independent public accountants expressing their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay the principal, premium, if any, and interest when due with respect to all such Debentures to maturity or redemption, as the case may be, (b) no Event of Default with respect to the Debentures of such series shall have occurred and be continuing (i) on the date of such deposit or (ii) with respect to certain bankruptcy defaults, at any time during the period ending on the 123rd day after the date of such deposit, (c) such legal defeasance or covenant defeasance does not result in the trust arising from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended, (d) the legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Company is a party or by which it is bound, (e) the Company delivers to the Trustee an opinion of counsel that the holders of such Debentures will not recognize income, gain or loss for United States federal income tax purposes as a result of such legal defeasance or covenant defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance or covenant defeasance had not occurred, and (f) the Company delivers to the Trustee an officers' certificate and an opinion of counsel, each stating that all
conditions precedent to the defeasance and discharge of such Debentures as contemplated by the Indenture have been complied with. The opinion of counsel, with respect to legal defeasance, referred to in clause (e) above, must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable United States federal income tax law occurring after the date of the Indenture.
The Trustee shall hold in trust cash or U.S. Government Obligations deposited with it as described above and shall apply the deposited cash and the proceeds from deposited U.S. Government Obligations to the payment of principal, premium, if any, and interest with respect to such Debentures.
CONCERNING THE TRUSTEE
The Company has the right to replace the Trustee under certain circumstances, including (subject to the Company's satisfying certain conditions) if the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business or assets to another corporation or banking association.
The Company and certain of its subsidiaries may from time to time maintain lines of credit, and have other customary banking and commercial relationships, with the Trustee and its affiliates. The Trustee also acts as trustee under another indenture pursuant to which the Company issued its 9% Debentures Due 2006. The Trustee is the Administrative Agent under the Credit Agreement and is an affiliate of one of the Initial Purchasers, Chase Securities Inc. In addition, the Trustee and certain of its affiliates may own Debentures.
REGISTRATION RIGHTS AGREEMENT
The Company entered into the Registration Rights Agreement with the Initial Purchasers in connection with the sale of the Old Debentures pursuant to which the Company has agreed, for the benefit of the holders of each series of Old Debentures, at the Company's cost, to (i) file the Exchange Offer Registration Statement, of which this Prospectus is a part, within 150 days after the date of original issuance of such Old Debentures (May 8, 1997 for the Old 2032 Debentures and May 6, 1997 for the other Old Debentures, the "Issue Date") with the Commission with respect to the Exchange Offers and (ii) use its best efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 180 days after the Issue Date. Promptly after the Exchange Offer Registration Statement is declared effective, the Company will consummate the Exchange Offers. The Company will keep the Exchange Offers open for not less than 30 days (or longer if required by applicable law) after the date notice of the Exchange Offers is mailed to the holders of Old Debentures.
In the event that any changes in law or applicable interpretations of the
staff of the Commission do not permit the Company to effect the Exchange
Offers with respect to any series of Old Debentures, or if for any reason the
Exchange Offer Registration Statement is not declared effective within 180
days following the Issue Date, or upon the request of the Initial Purchasers
under certain circumstances, the Company will, in lieu of effecting the
registration of the applicable New Debentures pursuant to the Exchange Offer
Registration Statement and at its cost, (i) as promptly as practicable, file
with the Commission a Shelf Registration Statement covering resales of the
applicable Old Debentures, (ii) use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act by
the 210th day after the Issue Date (or promptly in the event of a request by
the Initial Purchasers) and (iii) keep effective the Shelf Registration
Statement until the earliest of (x) the second anniversary of the Issue Date
(or the first anniversary of the effective date if such Shelf Registration
Statement is filed at the request of the Initial Purchasers), (y) the time
when the Old Debentures registered thereunder can be sold by non-affiliates
pursuant to Rule 144 under the Securities Act without limitation under clauses
(c), (e), (f) and (h) of Rule 144, or (z) such time as all the Old Debentures
registered thereunder have been sold. During any consecutive 365-day period,
the Company will have the ability to suspend the availability of the Shelf
Registration Statement for up to two periods of up to 45 consecutive days, but
no more than an aggregate of 60 days during any 365-day period. The Company
will, in the event of the filing of a Shelf Registration Statement, provide to
each holder of such applicable Old Debentures copies of the prospectus which
is part of the Shelf Registration Statement, notify each such holder when the
Shelf Registration Statement for such Old Debentures has become effective and
take certain other actions as are required to permit unrestricted
resales of such Old Debentures. A holder of such Old Debentures that sells such Old Debentures pursuant to the Shelf Registration Statement generally will be required to be named as a selling security holder in the related prospectus and to deliver a prospectus to the purchaser, will be subject to certain of the civil liability provisions under the Securities Act in connection with such sales and will be bound by the provisions of the Registration Rights Agreement which are applicable to such a holder (including certain indemnification obligations). In addition, each Holder of such Old Debentures will be required to deliver information to be used in connection with the Shelf Registration Statement and to provide comments on the Shelf Registration Statement within the time periods set forth in the Registration Rights Agreement in order to have their Old Debentures included in the Shelf Registration Statement and to benefit from the provisions regarding Special Interest set forth in the following paragraph. If the Company has consummated the Exchange Offers, then, subject to certain limited exceptions, the Company will have no obligation to file or to maintain the effectiveness of a Shelf Registration Statement with respect to any Old Debentures that are not tendered in the Exchange Offers.
In the event that (i) by the 150th day following the Issue Date, the
Exchange Offer Registration Statement is not filed with the Commission, (ii)
by the 180th day following the Issue Date, neither the Exchange Offer
Registration Statement is declared effective nor (if the Exchange Offers are
not permitted as described above) the Shelf Registration Statement is filed
with the Commission, or (iii) by the 210th day following the Issue Date, one
or more of the Exchange Offers with respect to any series of Old Debentures is
not consummated or the Shelf Registration Statement is not declared effective
with respect thereto (each such event referred to in clauses (i) through
(iii), a "Registration Default"), interest will accrue on the applicable Old
Debentures (in addition to stated interest on such Old Debentures) from and
including the next day following each such Registration Default. In each case
such additional interest (the "Special Interest") will be payable in cash
semiannually in arrears each May 1 and November 1, at a rate per annum equal
to 0.25% of the principal amount of such Old Debentures for each such
Registration Default. The aggregate amount of Special Interest payable
pursuant to the above provisions will, however, in no event exceed 0.25% per
annum of the principal amount of such Old Debentures. Upon (a) the filing of
the Exchange Offer Registration Statement after the 150-day period described
in clause (i) above, (b) the effectiveness of the Exchange Offer Registration
Statement or the filing of the Shelf Registration Statement after the 180-day
period described in clause (ii) above or (c) the consummation of the Exchange
Offer for such Old Debentures or the effectiveness of a Shelf Registration
Statement, as the case may be, after the 210-day period described in clause
(iii) above, the Special Interest payable on such Old Debentures as a result
of the applicable Registration Default will cease to accrue. For purposes of
the preceding sentence, the curing of a Registration Default by the means
described in clause (b) above shall constitute a cure of the Registration
Defaults described in clauses (i) and (ii) above, and the curing of a
Registration Default by the means described in clause (c) above shall
constitute a cure of the Registration Defaults described in clauses (i), (ii)
and (iii) above.
In the event that a Shelf Registration Statement is declared effective
pursuant to the paragraph preceding the immediately preceding paragraph, if
the Company fails to keep such Registration Statement continuously effective
for the period required by the Registration Rights Agreement (except as
specifically permitted therein), then from such time as the Shelf Registration
Statement is no longer effective until the earlier of (i) the date that the
Shelf Registration Statement is again deemed effective and (ii) the date that
is the earliest of (x) the second anniversary of the Issue Date (or until the
first anniversary of the effective date if the Shelf Registration Statement is
filed at the request of the Initial Purchasers), (y) the time when the Old
Debentures registered thereunder can be sold by non-affiliates pursuant to
Rule 144 under the Securities Act without any limitation under clauses (c),
(e), (f) and (h) of Rule 144, or (z) the date as of which all such Old
Debentures are sold pursuant to the Shelf Registration Statement, Special
Interest shall accrue at a rate per annum equal to 0.25% of the principal
amount of the Old Debentures and shall be payable in cash semiannually in
arrears each May 1 and November 1.
The summary herein of certain provisions of the Registration Rights Agreement does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the Registration Rights Agreement, a copy of which is available upon request to the Company.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION
IN THE EXCHANGE OFFERS
An exchange of the Old Debentures for the New Debentures pursuant to the Exchange Offers will not constitute a taxable event for federal income tax purposes. As a result, holders who exchange their Old Debentures for New Debentures should not recognize any income, gain or loss for federal income tax purposes with respect to such exchange. An exchanging holder will have the same adjusted basis and holding period in the New Debentures as it had in the Old Debentures immediately before the exchange.
HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISOR AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF EXCHANGING OLD DEBENTURES FOR NEW DEBENTURES IN THE EXCHANGE OFFERS, INCLUDING THE APPLICABILITY AND EFFECT OF ANY STATE, LOCAL, OR FOREIGN TAX LAWS.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Debentures for its own account pursuant to the Exchange Offers must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Debentures. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Debentures received in exchange for Old Debentures where such Old Debentures were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, starting on the Expiration Date and ending on the close of business 180 days after the Expiration Date, it will make this Prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale.
The Company will not receive any proceeds from any sale of New Debentures by broker-dealers. New Debentures received by broker-dealers for their own account pursuant to the Exchange Offers may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the New Debentures or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such New Debentures. Any broker-dealer that resells New Debentures that were received by it for its own account pursuant to the Exchange Offers and any broker or dealer that participates in a distribution of such New Debentures may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit of any such resale of New Debentures and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that by acknowledging that it will deliver and by delivering a prospectus meeting the requirements of the Securities Act, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offers (including the expenses of one counsel for the holders of the Old Debentures) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the Old Debentures (including any broker dealers) against certain liabilities, including liabilities under the Securities Act.
VALIDITY OF DEBENTURES
The validity of the New Debentures offered hereby will be passed upon for the Company by McGuire, Woods, Battle & Boothe, L.L.P., Richmond, Virginia. Robert L. Burrus, Jr., a partner of McGuire, Woods, Battle & Boothe, L.L.P., is a director of the Company and owns 4,449 shares of the Company's common stock.
EXPERTS
The consolidated financial statements of the Company, incorporated by reference in this Prospectus and elsewhere in the Registration Statement, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated by reference in this Prospectus and in the Registration Statement in reliance upon such report given upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Conrail as of December 31, 1996 and 1995, and for each of the years in the three-year period ended December 31, 1996 have been incorporated by reference in reliance on the report of Price Waterhouse LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
With respect to the unaudited consolidated financial information of Conrail for the quarters ended March 31, 1997 and 1996, incorporated by reference in this Prospectus, Price Waterhouse LLP reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate report dated April 16, 1997 incorporated by reference herein, states that they did not audit and they do not express an opinion on that unaudited consolidated financial information. Price Waterhouse LLP has not carried out any significant or additional audit tests beyond those which would have been necessary if their report had not been included. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. Price Waterhouse LLP is not subject to the liability provisions of Section 11 of the Securities Act for their report on the unaudited consolidated financial information because that report is not a "report" or a "part" of the registration statement prepared or certified by Price Waterhouse LLP within the meaning of Sections 7 and 11 of the Securities Act.
(MAP)
MAP DOES NOT DISTINGUISH IN ALL CASES BETWEEN TRACKAGE RIGHTS AND OWNERSHIP, NOR DOES IT INDICATE THE GRANT OF TRACKAGE RIGHTS BY CSX OR NSC TO THE OTHER OVER THE ROUTES ALLOCATED ABOVE.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFOR- MATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER MADE HEREBY EXCEPT AS CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICA- TION THAT THERE HAS BEEN NO CHANGE IN THE INFORMATION SET FORTH OR INCORPORATED BY REFERENCE HEREIN OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
PAGE
----
Available Information.................................................... 2
Incorporation of Certain Documents by Reference.......................... 2
Summary.................................................................. 4
Risk Factors............................................................. 10
The Company.............................................................. 11
Use of Proceeds.......................................................... 15
Capitalization........................................................... 16
Consolidated Ratio of Earnings to Fixed Charges and Selected Financial
Ratio................................................................... 17
Selected Historical Financial Data for the Company....................... 18
Selected Historical Financial Data for Conrail........................... 20
Unaudited Pro Forma Financial Statements................................. 22
Notes to Unaudited Pro Forma Financial Statements........................ 26
The Exchange Offers...................................................... 30
Description of New Debentures............................................ 38
Certain Federal Income Tax Consequences of Participation in the Exchange
Offers.................................................................. 49
Plan of Distribution..................................................... 49
Validity of Debentures................................................... 49
Experts.................................................................. 50
|
$2,500,000,000
CSX CORPORATION
$350,000,000
7.05% DEBENTURES DUE 2002
$300,000,000
7.25% DEBENTURES DUE 2004
$450,000,000
7.45% DEBENTURES DUE 2007
$400,000,000
7.90% DEBENTURES DUE 2017
$500,000,000
7.95% DEBENTURES DUE 2027
$100,000,000
6.95% DEBENTURES DUE 2027
$250,000,000
7.25% DEBENTURES DUE 2027
$150,000,000
8.30% DEBENTURES DUE 2032
[LOGO OF CSX CORPORATION APPEARS HERE]
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 10 of the Virginia Stock Corporation Act allows, in general, for indemnification, in certain circumstances, by a corporation of any person threatened with or made a party to any action, suit or proceeding by reason of the fact that he or she is, or was, a director, officer, employee or agent of such corporation. Indemnification is also authorized with respect to a criminal action or proceeding where the person had no reasonable cause to believe that his or her conduct was unlawful. Article 9 of the Virginia Stock Corporation Act provides limitations on damages payable by officers and directors, except in cases of willful misconduct or knowing violation of criminal law or any federal or state securities law.
Article VII of the Company's Amended and Restated Articles of Incorporation provides for mandatory indemnification of any director or officer of the Company who is, was or is threatened to be made a party to any proceeding (including any proceeding by or on behalf of the Company) by reason of the fact that he or she is or was a director or officer of the Company against all liabilities and reasonable expenses incurred in the proceeding, except such liabilities and expenses as are incurred because of such director's or officer's willful misconduct or knowing violation of the criminal law.
The Company's Amended and Restated Articles of Incorporation also provide that in every instance permitted under Virginia corporate law in effect from time to time, the liability of a director of officer of the Company to the Company or its shareholders arising out of a single transaction, occurrence or course of conduct shall be limited to one dollar.
The Company maintains a standard policy of officers' and directors' liability insurance.
Reference is made to the Purchase Agreement included herein as an exhibit to the Registration Statement for provisions regarding indemnification of the Company's officers, directors and controlling persons against certain liabilities.
ITEM 21. EXHIBITS
EXHIBIT
4.1 Indenture, dated August 1, 1990, between the Company and The Chase Manhattan Bank,
as Trustee (incorporated herein by reference to the Company's Form SE, dated
September 7, 1990, filed with the Commission)
4.2 First Supplemental Indenture, dated as of June 15, 1991, between the Company and The
Chase Manhattan Bank, as Trustee (incorporated herein by reference to Exhibit 4(c)
to the Company's Form SE, dated May 28, 1992, filed with the Commission)
4.3 Second Supplemental Indenture, dated as of May 6, 1997, between the Company and The
Chase Manhattan Bank, as Trustee (a)
4.4 Purchase Agreement, dated as of May 6, 1997, between the Company and Salomon
Brothers Inc, individually and as representative of the Initial Purchasers (a)
4.5 Registration Rights Agreement, dated May 6, 1997, between the Company and Salomon
Brothers Inc, individually and as representative of the Initial Purchasers (a)
4.6 Form of New 7.05% Debenture Due 2002 (b)
4.7 Form of New 7.25% Debenture Due 2004 (b)
4.8 Form of New 7.45% Debenture Due 2007 (b)
4.9 Form of New 7.90% Debenture Due 2017 (b)
4.10 Form of New 7.95% Debenture Due 2027 (b)
4.11 Form of New 6.95% Debenture Due 2027 (b)
|
II-1
EXHIBIT
4.12 Form of New 7.25% Debenture Due 2027 (b)
4.13 Form of New 8.30% Debenture Due 2032 (b)
5.1 Opinion of McGuire, Woods, Battle & Boothe, L.L.P., regarding validity of New
Debentures being registered (b)
12.1 Statement regarding the computation of the ratio of earnings to fixed charges (a)
15.1 Awareness Letter of Price Waterhouse LLP, Independent Accountants (a)
23.1 Consent of Ernst & Young LLP, Independent Auditors (a)
23.2 Consent of Price Waterhouse LLP, Independent Accountants (a)
23.3 Consent of McGuire, Woods, Battle & Boothe, L.L.P. contained in the opinion filed as
Exhibit 5.1 hereto
24.1 Powers of Attorney of certain directors and officers of the Company (a)
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act as trustee
under the Indenture (a)
99.1 Form of Letter of Transmittal (b)
99.2 Form of Exchange Agent Agreement between the Company and The Chase Manhattan Bank,
as Exchange Agent (b)
|
ITEM 22. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any acts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement (notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933 if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement); (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that subparagraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those subparagraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned Registrant hereby further undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
II-2
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant, pursuant to the provisions described under Item 15 or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification by it is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated by reference into the Prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first-class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the Registration Statement through the date of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a post- effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the Registration Statement when it became effective.
II-3
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF RICHMOND, COMMONWEALTH OF VIRGINIA, ON THE 4TH DAY OF JUNE, 1997.
CSX Corporation
/s/ James L. Ross
By __________________________________
JAMES L. ROSS
VICE PRESIDENT AND CONTROLLER
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED
ON THE 4TH DAY OF JUNE, 1997.
SIGNATURE TITLE
/s/ John W. Snow* Chairman, President, Chief Executive
- ------------------------------------- Officer and Director (Principal
JOHN W. SNOW Executive Officer)
/s/ Paul R. Goodwin* Executive Vice President--Finance and
- ------------------------------------- Chief Financial Officer (Principal
PAUL R. GOODWIN Financial Officer)
/s/ James L. Ross* Vice President and Controller
- ------------------------------------- (Principal Accounting Officer)
JAMES L. ROSS
/s/ Elizabeth E. Bailey* Director
- -------------------------------------
ELIZABETH E. BAILEY
/s/ Robert L. Burrus, Jr.* Director
- -------------------------------------
ROBERT L. BURRUS, JR.
/s/ Bruce C. Gottwald* Director
- -------------------------------------
BRUCE C. GOTTWALD
/s/ John R. Hall* Director
- -------------------------------------
JOHN R. HALL
/s/ Robert D. Kunisch* Director
- -------------------------------------
ROBERT D. KUNISCH
/s/ Hugh L. McColl, Jr.* Director
- -------------------------------------
HUGH L. MCCOLL, JR.
II-4
|
SIGNATURE TITLE
--------- -----
/s/ James W. McGlothlin* Director
- -------------------------------------
JAMES W. MCGLOTHLIN
/s/ Southwood J. Morcott* Director
- -------------------------------------
SOUTHWOOD J. MORCOTT
/s/ Charles E. Rice* Director
- -------------------------------------
CHARLES E. RICE
/s/ William C. Richardson* Director
- -------------------------------------
WILLIAM C. RICHARDSON
/s/ Frank S. Royal* Director
- -------------------------------------
FRANK S. ROYAL
*By: /s/ Alan A. Rudnick
---------------------------------
ALAN A. RUDNICK
ATTORNEY-IN-FACT
|
II-5
EXHIBITS
4.1 Indenture, dated August 1, 1990, between the Company and The Chase
Manhattan Bank, as Trustee (incorporated herein by reference to the
Company's Form SE, dated September 7, 1990, filed with the Commission)
4.2 First Supplemental Indenture, dated as of June 15, 1991, between the
Company and The Chase Manhattan Bank, as Trustee (incorporated herein by
reference to Exhibit 4(c) to the Company's Form SE, dated May 28, 1992,
filed with the Commission)
4.3 Second Supplemental Indenture, dated as of May 6, 1997, between the
Company and The Chase Manhattan Bank, as Trustee (a)
4.4 Purchase Agreement, dated as of May 6, 1997, between the Company and
Salomon Brothers Inc, individually and as representative of the Initial
Purchasers (a)
4.5 Registration Rights Agreement, dated May 6, 1997, between the Company
and Salomon Brothers Inc, individually and as representative of the
Initial Purchasers (a)
4.6 Form of New 7.05% Debenture Due 2002 (b)
4.7 Form of New 7.25% Debenture Due 2004 (b)
4.8 Form of New 7.45% Debenture Due 2007 (b)
4.9 Form of New 7.90% Debenture Due 2017 (b)
4.10 Form of New 7.95% Debenture Due 2027 (b)
4.11 Form of New 6.95% Debenture Due 2027 (b)
4.12 Form of New 7.25% Debenture Due 2027 (b)
4.13 Form of New 8.30% Debenture Due 2032 (b)
5.1 Opinion of McGuire, Woods, Battle & Boothe, L.L.P., regarding validity
of New Debentures being registered (b)
12.1 Statement regarding the computation of the ratio of earnings to fixed
charges (a)
15.1 Awareness Letter of Price Waterhouse LLP, Independent Accountants (a)
23.1 Consent of Ernst & Young LLP, Independent Auditors (a)
23.2 Consent of Price Waterhouse LLP, Independent Accountants (a)
23.3 Consent of McGuire, Woods, Battle & Boothe, L.L.P. contained in the
opinion filed as Exhibit 5.1 hereto
24.1 Powers of Attorney of certain directors and officers of the Company (a)
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act as
trustee under the Indenture (a)
99.1 Form of Letter of Transmittal (b)
99.2 Form of Exchange Agent Agreement between the Company and The Chase
Manhattan Bank, as Exchange Agent (b)
|
(b) To be filed by amendment.
EXHIBIT 4.3
EXECUTION COPY
CSX CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
SECOND SUPPLEMENTAL
INDENTURE
Dated as of May 6, 1997
Senior Securities
SECOND SUPPLEMENTAL INDENTURE, dated as of May 6, 1997 between CSX Corporation, a Virginia corporation (the "Company"), and The Chase Manhattan Bank, a New York banking corporation, Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee a certain indenture, dated as of August 1, 1990 and supplemented by the First Supplemental Indenture, dated as of June 15, 1991 (herein called the "Indenture"), pursuant to which one or more series of unsecured debentures, securities or other evidences of indebtedness of the Company (herein called the "Securities") may be issued from time to time;
WHEREAS, Section 901 of the Indenture provides that the Company, when authorized by a Board Resolution, and the Trustee may at any time and from time to time enter into an indenture supplemental to the Indenture for the purpose, among other things, of (i) changing or eliminating any of the provisions of the Indenture, provided that such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision, (ii) establishing the form or terms of Securities of any series and any related coupons as permitted by Sections 201 and 301, (iii) making any other provisions with respect to matters or questions arising under the Indenture, provided that such action shall not adversely affect the interests of the Holders of Securities of any series or any related
coupons in any material respect or (iii) to establish the form of Securities of any series and any related coupons pursuant to Sections 201 and 301;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and by this Second Supplemental Indenture to amend the Indenture in certain respects with respect to the following Securities: $350,000,000 of its 7.05% Debentures Due 2002 (the "2002 Debentures"), $300,000,000 of its 7.25% Debentures Due 2004 (the "2004 Debentures"), $450,000,000 of its 7.45% Debentures Due 2007 (the "2007 Debentures"), $400,000,000 of its 7.90% Debentures Due 2017 (the "2017 Debentures"), $500,000,000 of its 7.95% Debentures Due 2027 (the "7.95% 2027 Debentures"), $100,000,000 of its 6.95% Debentures Due 2027 (the "6.95% 2027 Debentures"), $250,000,000 of its 7.25% Debentures Due 2027 (the "7.25% 2027 Debentures") and $150,000,000 of its 8.30% Debentures Due 2032 (the "2032 Debentures" and, collectively with the 2002 Debentures, the 2004 Debentures, the 2007 Debentures, the 2017 Debentures, the 7.95% 2027 Debentures, the 6.95% 2027 Debentures and the 7.25% 2027 Debentures, the "May 1997 Securities" or the "Initial Securities"); and
WHEREAS, all things necessary to make this Second Supplemental Indenture a valid agreement of the Company and the Trustee and a valid amendment of and supplement to the Indenture have been done.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the May 1997 Securities, as follows:
ARTICLE ONE
Solely with respect to the May 1997 Securities, and not with respect to any other Securities previously established, the Indenture is hereby amended and supplemented as specified below.
"Agent Member" has the meaning provided in Section 312.
"Depositary" means The Depository Trust Company, its nominees and successors.
"Exchange Offer" means the offer by the Company to the Holders of the Initial Securities to exchange all of the Initial Securities for Exchange Securities, as provided in the Registration Rights Agreement.
"Exchange Securities" refers to any Security containing terms substantially identical to the Initial Securities (except that (i) such Exchange Securities shall not contain terms with respect to transfer restrictions and shall be registered under the Securities Act, and (ii) certain provisions relating to an increase in the stated rate of interest thereon shall be eliminated) that are issued and exchanged for the Initial Securities in accordance with the Exchange Offer, as provided in the Registration Rights Agreement and this Indenture.
"Initial Purchasers" means Salomon Brothers Inc, Credit Suisse First Boston Corporation, Chase Securities Inc., Goldman, Sachs & Co., Morgan Stanley & Co. Incorporated and NationsBanc Capital Markets, Inc.
"Initial Securities" has the meaning stated in the recitals to this Indenture.
"Issue Date" means, with respect to a Securitiy, the date on which the Trustee authenticated such Security.
"Offshore Securities Exchange Date" has the meaning provided in
Section 201.
"Non-U.S. Person" means a person who is not a U.S. person, as defined in Regulation S.
"Permanent Offshore Physical Securities" has the meaning provided in
Section 201.
"Physical Securities" has the meaning provided in Section 201.
"Principal Subsidiary" means CSX Transportation, Inc. ("CSXT"), Sea- Land Service, Inc. ("Sea-Land") and American Commercial Lines, Inc. ("ACL").
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights Agreement dated as of May 6, 1997 among the Company and the Initial Purchasers and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Repayment Date" means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment by or pursuant to such Security.
"Restricted Period" has the meaning provided in Regulation S.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933.
"Temporary Offshore Global Securities" has the meaning provided in
Section 201.
"U.S. Global Securities" has the meaning provided in Section 201.
"U.S. Physical Securities" has the meaning provided in Section 201.
Initial Securities offered and sold in reliance on Rule 144A may be issued in the form of one or more permanent global securities substantially in the form set forth in Annex I hereto (the "U.S. Global Securities") deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the U.S. Global Securities may from time to time be increased or decreased by adjustments made on the records of the Security Registrar, as custodian for the Depositary or the Trustee, as hereinafter provided.
Initial Securities offered and sold in reliance on Regulation S shall be issued initially in the form of temporary global Securities in registered form substantially in the form set forth in Annex I hereto (the "Temporary Offshore Global Securities"). The Temporary Offshore Global Securities will be registered in the name of, and held by, a temporary certificate holder designated by the Initial Purchasers until the later of the completion of the distribution of the Initial Securities and the termination of the Restricted Period with respect to the offer and sale of the Initial Securities (the "Offshore Securities Exchange Date"). At any time following the Offshore Securities Exchange Date, upon receipt by the Trustee and the Company of a certificate substantially in the form set forth in Section 205, the Company shall execute, and the Trustee shall execute and deliver, one or more permanent certificated Securities substantially in the form set forth in Annex I hereto (the "Permanent
Offshore Physical Securities") in exchange for the Temporary Offshore Global Securities of like tenor and amount.
Initial Securities offered and sold other than as described in the preceding two paragraphs shall be issued in the form of permanent certificated Securities in Registered form in substantially the same form set forth in Annex I hereto (the "U.S. Physical Securities"). The Temporary Offshore Global Securities, Permanent Offshore Physical Securities and U.S. Physical Securities are sometimes collectively herein referred to as the "Physical Securities".
Unless and until (i) an Initial Security is sold under an effective Registration Statement or (ii) an Initial Security is exchanged for an Exchange Security in connection with an effective Registration Statement, in each case pursuant to the Registration Rights Agreement, each such U.S. Global Security, Temporary Offshore Global Security and U.S. Physical Security shall bear the following legend (the "Private Placement Legend") on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR
SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE TRUSTEE
AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND
(ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE
TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A
TO THE OFFERING MEMORANDUM DATED MAY 1, 1997. SUCH HOLDER FURTHER AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH HEREON RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
Each U.S. Global Security, whether or not an Initial Security, shall also bear the following legend on the face thereof:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 313 OF THE INDENTURE.
The following certificate, to be dated on or after expiration of the Restricted Period, shall be delivered by a Holder in connection with transfers pursuant to Regulation S.
THE CHASE MANHATTAN BANK
Global Trust Services
450 West 33rd Street, 15th Floor
New York, NY 10001
Ladies and Gentlemen:
This letter relates to U.S. $_________ principal amount of Securities represented by a temporary global security certificate (the "Temporary Certificate") which bears a legend outlining restrictions upon transfer of such Temporary Certificate. Pursuant to Section 201 of the Indenture dated as of August 1, 1990, as supplemented and amended by the First Supplemental Indenture dated as of June 15, 1991 and the Second Supplemental Indenture dated as of May 6, 1997 relating to the Securities (the "Indenture"), we hereby certify that we are (or we will hold such Securities on behalf of) a person outside the United States to whom the Securities could be transferred in accordance with Rule 904 of Regulation S promulgated under the U.S. Securities Act of 1933, as amended. Accordingly, you are hereby requested to exchange the Temporary Certificate for an unlegended certificate representing an identical principal amount of Securities, all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
(a) The U.S. Global Security initially shall (i) be registered in the name of the Depositary for such global Security or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as set forth in Section 204.
Members of, or participants in, the Depositary ("Agent Members") shall have no rights under this Indenture with respect to any U.S. Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under the U.S. Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such U.S. Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security.
(b) Transfers of the U.S. Global Security shall be limited to transfers of such U.S. Global Security in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in the U.S. Global Security may be transferred in accordance with the rules and procedures of the Depositary and the provisions of Section 313. U.S. Physical Securities shall be transferred to all beneficial owners in exchange for their beneficial interests in the U.S. Global Security if (i) the Depositary notifies the Company that it is unwilling, unable or ineligible to continue as Depositary for the U.S. Global Security or if at any time the Depositary ceases to be a clearing agency registered under the Exchange Act, (ii) the Company in its sole discretion determines that the U.S. Global Security shall be exchangeable for U.S. Physical Securities, or (iii) any event shall have happened and be continuing which, after notice or lapse of time, or both, would become an Event of Default with respect to such Securities.
(c) In connection with any transfer of a portion of the beneficial interest in the U.S. Global Security pursuant to subsection (b) of this Section to beneficial owners who are required to hold U.S. Physical Securities, the Security Registrar shall reflect on its books and records the date and a decrease in the principal amount of the U.S. Global Security in an amount equal to the principal amount of the beneficial interest in the U.S. Global Security to
be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more U.S. Physical Securities of like tenor and amount.
(d) In connection with the transfer of the entire U.S. Global Security to beneficial owners pursuant to subsection (b) of this Section, the U.S. Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the U.S. Global Security, an equal aggregate principal amount of U.S. Physical Securities of authorized denominations.
(e) Any U.S. Physical Security delivered in exchange for an interest
in the U.S. Global Security pursuant to subsection (c) or subsection (d) of this
Section shall, except as otherwise provided by paragraph (a)(i)(x) and paragraph
(f) of Section 313, bear the applicable legend regarding transfer restrictions
applicable to the U.S. Physical Security set forth in Section 204.
(f) The registered holder of the U.S. Global Security may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities.
Unless and until (i) an Initial Security is sold under an effective Registration Statement, or (ii) an Initial Security is exchanged for an Exchange Security in connection with an effective Registration Statement, in each case pursuant to the Registration Rights Agreement, the following provisions shall apply:
(i) The Security Registrar shall register the transfer of any Initial Security, whether or not such Initial Security bears the Private Placement Legend, if (x) the requested transfer is at least two years after the original issue date of the Initial Security or (y) the proposed transferee has delivered to the Security Registrar a certificate substantially in the form set forth in Section 314.
interest in the U.S. Global Security, upon receipt by the Security Registrar of
(x) the documents, if any, required by paragraph (i) and (y) instructions given
in accordance with the Depositary's and the Security Registrar's procedures
therefor, the Security Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Security in an amount
equal to the principal amount of the beneficial interest in the U.S. Global
Security to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities of like tenor and
amount.
(i) If the Security to be transferred consists of U.S. Physical Securities, Temporary Offshore Global Securities or Permanent Offshore Physical Securities, the Security Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on the form of Initial Security stating, or has otherwise advised the Company and the Security Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of Initial Security stating, or has otherwise advised the Company and the Security Registrar in writing, that it is purchasing the Initial Security for its own account or an account with respect to which it exercises sole investment discretion and that it, or the person on whose behalf it is acting with respect to any such account, is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the Initial Security to be transferred consists of U.S. Physical Securities, Temporary Offshore Global Securities or Permanent Offshore Physical Securities, upon receipt by the Security Registrar of instructions given in accordance with the Depositary's and the Security Registrar's procedures therefor, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the U.S. Global Security in an amount equal to the principal amount of the U.S. Physical Securities, Temporary Offshore Global Securities or Permanent
Offshore Physical Securities, as the case may be, to be transferred, and the Trustee shall cancel the Physical Security so transferred.
(i) The Security Registrar shall register the transfer of any
Initial Security (x) if the proposed transferee is a Non-U.S.
Person and the proposed transferor has delivered to the Security
Registrar a certificate substantially in the form set forth in
Section 315 or (y) if the proposed transferee is a QIB and the
proposed transferor has checked the box provided for on the form
of Initial Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the
form of Initial Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that it is
purchasing the Initial Security for its own account or an
account with respect to which it exercises sole investment
discretion and that it, or the person on whose behalf it is
acting with respect to any such account, is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A. Unless clause
(ii) below is applicable, the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Temporary
Offshore Global Securities of like tenor and amount.
(ii) If the proposed transferee is an Agent Member, upon receipt by the Security Registrar of instructions given in accordance with the Depositary's and the Security Registrar's procedures therefor, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the U.S. Global Security in an amount equal to the principal amount of the Temporary Offshore Global Security to be transferred, and the Security Registrar shall cancel the Temporary Offshore Global Securities so transferred.
(i) (x) If the Initial Security to be transferred is a Permanent
Offshore Physical Security, the Security Registrar shall
register such transfer, (y) if the Initial Security to be
transferred is a Temporary Offshore Global Security, upon
receipt of a certificate substantially in the form set forth in
Section 315 from the proposed transferor, the Security Registrar
shall register such transfer and (z) in the case of either
clause (x) or (y), unless clause (ii) below is applicable, the
Company shall execute, and the Trustee shall authenticate and
deliver, one or more Permanent Offshore Physical Securities of
like tenor and amount.
(ii) If the proposed transferee is an Agent Member, upon receipt by the Security Registrar of instructions given in accordance with the Depositary's and the Security Registrar's procedures therefor, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the U.S. Global Security in an amount equal to the principal amount of the Temporary Offshore Global Security or of the Permanent Offshore Physical Security to be transferred, and the Trustee shall cancel the Global Security so transferred.
(i) Prior to expiration of the Restricted Period, the Security Registrar shall register any proposed transfer of an Initial Security to a Non-U.S. Person upon receipt of a certificate substantially in the form set forth in Section 315 from the proposed transferor and the Company shall execute, and the Trustee shall authenticate and make available for delivery, one or more Temporary Offshore Physical Securities.
(ii) On and after expiration of the Restricted Period, the Security Registrar shall register any proposed transfer to any Non-U.S. Person (w) if the Initial Security to be transferred is a Permanent Offshore Physical Security, (x) if the Initial Security to be transferred is a Temporary Offshore Global Security, upon receipt of a certificate substantially in the form set forth in Section 315 from the proposed transferor, (y) if the Initial Security to be transferred is a U.S. Physical Security or an interest in the U.S. Global Security, upon receipt of a certificate
substantially in the form set forth in Section 315 from the
proposed transferor and (z) in the case of either clause (w),
(x) or (y), the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Permanent Offshore
Physical Securities of like tenor and amount.
(iii) If the proposed transferor is an Agent Member holding a beneficial interest in the U.S. Global Security, upon receipt by the Security Registrar of (x) the document, if any, required by paragraph (i), and (y) instructions in accordance with the Depositary's and the Security Registrar's procedures therefor, the Security Registrar shall reflect on its books and records the date and a decrease in the principal amount of the U.S. Global Security in an amount equal to the principal amount of the beneficial interest in the U.S. Global Security to be transferred and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Permanent Offshore Physical Securities of like tenor and amount.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 312 or this Section
313. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Security Registrar.
[date]
THE CHASE MANHATTAN BANK
Global Trust Services
450 West 33rd Street, 15th Floor
New York, NY 10001
Ladies and Gentlemen:
1. We understand that the _____% Securities due May 1, ____, (the
"Offered Securities") of CSX Corporation (the "Company") have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any state securities laws, and may not be offered or sold except as permitted
in the following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing the Offered Securities that, if,
prior to the date which is two years after the later of the date of original
issue of the Offered Securities and the last date on which the Company or any
affiliate of the Company was the owner of such Offered Securities (the "Resale
Restriction Termination Date"), we decide to offer, sell or otherwise transfer
any such Offered Securities, such offer, sale or transfer will be made only (a)
to the Company, (b) pursuant to an effective registration statement under the
Securities Act, (c) so long as the Offered Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) to an
institutional "accredited investor" within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring Offered
Securities for its own account or for the account of such an institutional
accredited investor for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution thereof in violation of the
Securities Act, (e) pursuant to offers and sales to non-U.S. persons that occur
outside the United States within the meaning of Regulation S under the
Securities Act or (f) pursuant to another available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirements of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and to compliance with any applicable state securities laws.
The foregoing restrictions on resale will
not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Offered Securities is proposed to be made pursuant to clause (d) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Trustee, which shall provide as applicable, among other things, that the transferee is an institutional "accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act that is acquiring such Offered Securities for investment purposes and not for distribution in violation of the Securities Act. We acknowledge on our behalf and on behalf of any investor account for which we are purchasing Offered Securities that the Company and the Trustee reserve the right prior to any offer, sale or other transfer pursuant to clause (d), (e) or (f) prior to the Resale Restriction Termination Date of the Offered Securities to require the delivery of any opinion of counsel, certifications and/or other information satisfactory to the Company and the Trustee. We understand that the certificates for any Offered Security that we receive will bear a legend substantially to the effect of the foregoing.
2. We are an institutional "accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act purchasing for our own account or for the account of such an institutional "accredited investor," and we are acquiring the Offered Securities for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act and we have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Offered Securities, and we and any account for which we are acting are each able to bear the economic risks of our or its investment.
3. We are acquiring the Offered Securities purchased by us for our own account (or for one or more accounts as to each of which we exercise sole investment discretion and have authority to make, and do make, the statements contained in this letter) and not with a view to any distribution of the Offered Securities, subject, nevertheless, to the understanding that the disposition of our property will at all times be and remain within our control.
4. We acknowledge that (a) none of the Company, or the Initial Purchasers (as defined in the Offering Memorandum dated May 1, 1997 relating to the Offered Securities (the "Final Memorandum")) nor any person acting on behalf of the Company or the Initial Purchasers has made any representation to us with respect to the Company or the offer or sale of any Offered Securities and (b) any information we desire concerning the Company and the Offered Securities or any other matter relevant to our decision to purchase the Offered Securities (including a copy of the Final Memorandum) is or has been made available to us.
5. We acknowledge that the Company, the Trustee, Initial Purchasers and others will rely upon the truth and accuracy of the foregoing acknowledgements, representations,
warranties and agreements and agree that if any of the acknowledgements, representations, warranties and agreements made by us herein with respect to our purchase of the Offered Securities are no longer accurate, we shall promptly notify the Initial Purchasers.
Very truly yours,
Upon transfer, the Offered Securities would be registered in the name of the new beneficial owner as follows:
[date]
THE CHASE MANHATTAN BANK
Global Trust Services
450 West 33rd Street, 15th Floor
New York, NY 10001
Ladies and Gentlemen:
In connection with our proposed sale of U.S.$__________ aggregate principal amount of the Securities, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the Securities Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United States;
(2) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us, any affiliate of ours, or any Person acting on our or their behalf, in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
The Company will not, nor will it permit any Subsidiary to, create, assume, incur or suffer to exist any Lien upon any stock or indebtedness, whether owned on the date of this Indenture or hereafter acquired, of any Principal Subsidiary, to secure any Obligation (other than the Securities) of the Company, any Subsidiary or any other Person, without in any such case making effective provision whereby all of the Outstanding Securities shall be directly secured equally and ratably with such Obligation.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In the case of any redemption at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company, notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
attorney duly authorized in writing) or (2) a telegram, facsimile transmission or a letter from a member of a national securities exchange, or the National Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or trust company in the United States setting forth the name of the Holder of Security, the principal amount of the Security, the amount of the Security to be repaid, the certificate number or a description of the tenor and terms of the Security, a statement that the option to elect repayment is being exercised thereby and a guarantee that the Security to be repaid, together with the duly completed form entitled "Option of Holder to Elect Purchase", will be received by the Trustee not later than the fifth Business Day after the date of such telegram, facsimile transmission or letter; provided, however, that such telegram, facsimile transmission or letter shall only be effective if such Security and form duly completed are received by the Trustee by such fifth Business Day. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company.
If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any,
thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest set forth in such Security.
ARTICLE TWO
Except as expressly supplemented or amended as set forth in this Second Supplemental Indenture, the Indenture is hereby ratified and confirmed, and all the terms, provisions and conditions thereof shall be and continue in full force and effect. The Trustee accepts the trusts created by the Indenture, as amended and supplemented by this Second Supplemental Indenture, and agrees to perform the same upon the terms and conditions in the Indenture as amended and supplemented by this Second Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
CSX CORPORATION
[Seal] By: /s/ David D. Owen
----------------------------------------
Name: David D. Owen
Title: Managing Director--Corporate Finance
Attest:
/s/ Alan A. Rudnick
- --------------------------------
Corporate Secretary
|
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Ronald J. Halleran ------------------------------- Name: Ronald J. Halleran Title: Second Vice President |
Brendan P. Gilligan
Notary Public, State of New York
No. 01G15073591
State of New York Qualified in New York County
County of _________________ss.: Commission Expires, February 24, 1999
|
On the 6th day of May, 1997, before me personally came David D. Owen to me known, who, being by me duly sworn, did depose and say that he is Managing Director--Corporate Finance of CSX Corporation, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority.
(Notarial Seal) /s/ Brendan P. Gilligan
-----------------------
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THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON- U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE TRUSTEE AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED MAY 1, 1997. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS SECURITY TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 313 OF THE INDENTURE.
CSX CORPORATION
$______________________
_____ % DEBENTURE DUE 20__
No. [CUSIP][CINS][____________]
[ISIN] [____________]
This security (the "Security") is one of a duly authorized issue of securities (herein called the "Securities") of CSX Corporation, a Virginia corporation (hereinafter called the "Company," which term includes any successor corporation under the Indenture hereinafter referred to), issued and to be issued in one or more series under an indenture, unlimited as to aggregate principal amount, dated as of August 1, 1990 between the Company and The Chase Manhattan Bank, Trustee (herein called the "Trustee," which term includes any successor trustee under the Indenture (as hereinafter defined)), as supplemented by a First Supplemental Indenture dated as of June 15, 1991 and a Second Supplemental Indenture dated as of May 6, 1997, to which indenture and all indentures supplemental thereto (the indenture, as supplemented being herein called the "Indenture") reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, which series has been issued in an aggregate initial principal amount of $_____________ ([DOLLARS]). This Security represents an aggregate initial principal amount of $________________ ([DOLLARS]) (as adjusted from time to time in accordance with the terms and provisions hereof and as set forth on Exhibit A hereto, the "Principal Amount") of the Securities of such series, with the Interest Payment Dates, date of original issuance, and date of Maturity specified herein and bearing interest on said Principal Amount at the interest rate specified herein.
The Company, for value received, hereby promises to pay to _______________ or its registered assigns, the principal sum of $____________ ([DOLLARS]) on May 1, 20__, and to pay interest (computed on the basis of a 360- day year of twelve 30-day months) thereon from the Issue Date or from the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if the date of this Security is an Interest Payment Date to which interest has been paid or duly provided for, then from the date hereof, semiannually in arrears on May 1 and November 1 in each year,
commencing November 1, 1997, and at Maturity at the rate of ___% per annum, until the principal hereof is paid or duly made available for payment. The Company shall pay interest on overdue principal and premium, if any, and (to the extent lawful) interest on overdue installments of interest at the rate per annum borne by the Security. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the April 15 or October 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such Defaulted Interest, notice whereof shall be given to the Holder of this Security not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Security of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in such Indenture. Notwithstanding the foregoing, interest payable on this Security at Maturity will be payable to the person to whom principal is payable.
[Additional Interest (the "Special Interest") shall become payable in respect of the Security as follows, if any of the following events occur with respect to such Security (each such event in clauses (i) through (iv) below, a "Registration Default"):
(i) if a registration statement for an exchange offer (the "Exchange Offer") under the Securities Act with respect to the Securities (an "Exchange Offer Registration Statement") is not filed with the Commission on or prior to 150 days after the Issue Date;
(ii) if neither the Exchange Offer Registration Statement is declared effective nor (if the Exchange Offer is not permitted for the reasons described in the Registration Rights Agreement dated as of May 6, 1997 among the Company and the Initial Purchasers (the "Registration Rights Agreement")) a shelf registration statement under the Securities Act with respect to the Securities (the "Shelf Registration Statement") is filed with the Commission on or prior to 180 Days after the Issue Date;
(iii) if one or more of the Exchange Offers is not consummated with respect to the Securities of this series or the Shelf Registration Statement is declared effective on or prior to 210 days after the Issue Date; or
(iv) if, after 210 days after the Issue Date, and after the Shelf
Registration Statement is declared effective, the Company fails to keep the
Shelf Registration Statement effective (except as permitted by the proviso to
Section 3(b) of the Registration Rights
Agreement) then from such time as the Shelf Registration Statement is no longer
effective until the earlier of (i) the date that the Shelf Registration
Statement is again deemed effective and (ii) the date that is the earliest of
(x) the second anniversary of the Issue Date (or until the first anniversary of
the effective date of the Shelf Registration Statement if the Shelf Registration
Statement is filed at the request of the Initial Purchaser), (y) the time when
the Security registered under the Shelf Registration Statement can be sold by
non-Affiliates pursuant to Rule 144 under the Act without any limitations under
clauses (c), (e), (f) and (h) of Rule 144, or (z) the date as of which all of
such Securities are sold pursuant to the Shelf Registration Statement.
The holder of this Security is entitled to the benefits of the Registration Rights Agreement.
Special Interest shall accrue on the Security, over and above the
interest rate set forth in the Indenture applicable to such Security following
the occurrence of each Registration Default set forth in clauses (i), (ii),
(iii) and (iv) above from and including the next day following each such
Registration Default, in each case at a rate equal to 0.25% per annum of the
principal amount of such Security, provided, however, that the aggregate amount
of Special Interest payable will in no event exceed 0.25% per annum of the
principal amount of the Security. The Special Interest attributable to each
Registration Default shall cease to accrue from the date such Registration
Default is cured. Upon (a) the filing of the Exchange Offer Registration
Statement after the period described in clause (i) above, (b) the effectiveness
of the Exchange Offer Registration Statement or the filing of the Shelf
Registration Statement after the period described in clause (ii) above or (c)
the consummation of the Exchange Offer for such Security or the effectiveness of
a Shelf Registration Statement, as the case may be, after the period described
in clause (iii) above, Special Interest payable on such Security as a result of
the applicable Registration Default will cease to accrue. For purposes of the
preceding sentence, the curing of a Registration Default by the means described
in clause (b) above shall constitute a cure of the Registration Defaults
described in clauses (i) and (ii) above, and the curing of a Registration
Default by the means described in clause (c) above shall constitute a cure of
the Registration Defaults described in clauses (i), (ii) and (iii) above.
Any amounts of Special Interest due pursuant to the foregoing paragraphs will be payable in cash on May 1 and November 1 of each year to the holders of record on the preceding April 15 and October 15, respectively.]*
This Security is exchangeable in whole or from time to time in part for definitive Registered Securities of this series only as provided in this paragraph. If (x) the U.S. Depository with respect to the Securities of this series (the "U.S. Depository") notifies
the Company that it is unwilling, unable or ineligible to continue as U.S. Depository for this Security or if at any time the U.S. Depository ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (y) the Company in its sole discretion determines that this Security shall be exchangeable for definitive Registered Securities and executes and delivers to the Trustee a Company Order providing that this Security shall be so exchangeable or (z) there shall have happened and be continuing an Event of Default or any event which, after notice or lapse of time, or both, would become an Event of Default with respect to the Securities of the series of which this Security is a part, this Security or any portion hereof shall, in the case of clause (x) above, be exchanged for definitive Registered Securities of this series, and in the case of clauses (y) and (z) above, be exchangeable for definitive Registered Securities of this series, provided that the definitive Security so issued in exchange for this Security shall be in authorized denominations and be of like tenor and of an equal aggregate principal amount as the portion of the Security to be exchanged, and provided further that, in the case of clauses (y) and (z) above, definitive Registered Securities of this series will be issued in exchange for this Security, or any portion hereof, only if such definitive Registered Securities were requested by written notice to the Security Registrar by or on behalf of a Person who is a beneficial owner of an interest herein given through the Holder hereof. Any definitive Registered Security of this series issued in exchange for this Security, or any portion hereof, shall be registered in the name or names of such Person or Persons as the Holder hereof shall instruct the Security Registrar. Except as provided above, owners of beneficial interests in this Security will not be entitled to receive physical delivery of Security in definitive form and will not be considered the Holders thereof for any purpose under the Indenture.
Any exchange of this Security or portion hereof for one or more definitive Registered Securities of this series will be made at the New York office of the Security Registrar. Upon exchange of any portion of this Security for one or more definitive Registered Securities of this series, the Trustee shall endorse Exhibit A of this Security to reflect the reduction of its Principal Amount by an amount equal to the aggregate principal amount of the definitive Registered Securities of this series so issued in exchange, whereupon the Principal Amount hereof shall be reduced for all purposes by the amount so exchanged and noted. Except as otherwise provided herein or in the Indenture, until exchanged in full for one or more definitive Registered Securities of this series, this Security shall in all respects be subject to and entitled to the same benefits and conditions under the Indenture as a duly authenticated and delivered definitive Registered Security of this series.
The principal and any interest in respect of any portion of this Security payable in respect of an Interest Payment Date or at the Stated Maturity thereof, in each case occurring prior to the exchange of such portion for a definitive Registered Security or Securities of this series, will be paid, as provided herein, to the Holder hereof which will undertake in such circumstances to credit any such principal and interest received by it in respect of this Security to the respective accounts of the Persons who are the beneficial owners of such interests on such Interest Payment Date or at Stated Maturity. If a definitive
Registered Security or Registered Securities of this series are issued in exchange for any portion of this Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, then interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Holder hereof, and the Holder hereof will undertake in such circumstances to credit such interest to the account or accounts of the Persons who were the beneficial owners of such portion of this Security on such Regular Record Date or Special Record Date, as the case may be.
[The Company may be required to repurchase the Securities of this series, in whole or in part (the "Put Option"), on May 1, 20__, (the "Put Option Exercise Date") at a purchase price equal to 100% of the principal amount tendered by the Holder, plus accrued interest, if any, to the Put Option Exercise Date. On or before the Put Option Exercise Date, the Company shall deposit with the Trustee money sufficient to pay the principal of and any interest accrued on the such Securities to be tendered for repayment. On and after the Put Option Exercise Date, interest will cease to accrue on such Securities or any portion thereof tendered for repayment.
In the event of repurchase of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
A holder must provide the Company with notice of its intention to exercise the Put Option during the period from and including March 1, 20__ through and including April 1, 20__. Such notice, once given, will be irrevocable unless waived by the Company.]
[The Securities of this series are subject to redemption on or after May 1, 2007, in whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): if redeemed during the 12-month period beginning May 1 of the years indicated,
YEAR REDEMPTION PRICE ---- ----------------- 2007 104.150% 2008 103.735 2009 103.320 2010 102.905 2011 102.490 2012 102.075 2013 101.660 2014 101.245 2015 100.830 2016 100.415 2017 and thereafter 100.000 |
in each case with accrued interest to the Redemption Date; provided, however, that installments of interest on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Regular Record Dates referred to on the face hereof all as provided in the Indenture. Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture. In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series (including this Security and the interests represented hereby) may be declared due and payable in the manner and with the effect provided in the Indenture. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and any interest on the Securities of this series (including this Security and the interests represented hereby) shall terminate.
The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company on this Security and (b) certain restrictive covenants and the related defaults and Events of Default, upon compliance with certain conditions set forth therein, which provisions shall apply to this Security.
The provisions of Article Fourteen of the Indenture apply to Securities of this series.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of each series at the time Outstanding on behalf of the Holders of all Securities of such series to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and the Persons who are beneficial owners of interests represented hereby, and of any Security issued in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of (and premium, if any) or interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional to pay the principal of (and premium, if any) and interest on this Security at the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and herein set forth, the transfer of Registered Securities of the series of which this Security is a part may be registered on the Security Register of the Company, upon surrender of such Securities for registration of transfer at the office of the Security Registrar, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing, and thereupon one or two more new Securities of this Series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange of Securities as provided above, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series of which this Security is a part are issuable only in registered form without coupons, in denominations of $1,000.00 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
The Securities of this series shall be dated the date of their authentication.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on behalf of The Chase Manhattan Bank, the Trustee under the Indenture, or its successor thereunder, by the manual signature of one of its authorized officers, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
Dated: May __, 1997
CSX CORPORATION
[Seal] By:
---------------------------------------------
Name: David D. Owen
Title: Managing Director--Corporate Finance
Attest:
- -----------------------------------
Corporate Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series issued under the Indenture described herein.
THE CHASE MANHATTAN BANK, as Trustee
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
OFFSHORE GLOBAL SECURITIES AND
OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the date of an effective Registration Statement or (ii) the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising that:
[ ] (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or the Security Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 313 of the Indenture shall have been satisfied.
Date:
---------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Dated:
--------------------- -----------------------------------------
NOTICE: To be executed by an executive
officer
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[OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have all or a portion of this Security purchased by the Company pursuant to Article Fifteen of the Indenture, state the amount (in principal amount): $________________.
Schedule of Exchanges
EXHIBIT 4.4
EXECUTION COPY
CSX CORPORATION
$2,500,000,000
$350,000,000 7.05% Debentures Due 2002 $300,000,000 7.25% Debentures Due 2004 $450,000,000 7.45% Debentures Due 2007 $400,000,000 7.90% Debentures Due 2017 $500,000,000 7.95% Debentures Due 2027 $100,000,000 6.95% Debentures Due 2027 $250,000,000 7.25% Debentures Due 2027 $150,000,000 8.30% Debentures Due 2032 |
PURCHASE AGREEMENT
Dated: May 1, 1997
CSX CORPORATION
$2,500,000,000
$350,000,000 7.05% Debentures Due 2002
$300,000,000 7.25% Debentures Due 2004
$450,000,000 7.45% Debentures Due 2007
$400,000,000 7.90% Debentures Due 2017
$500,000,000 7.95% Debentures Due 2027
$100,000,000 6.95% Debentures Due 2027
$250,000,000 7.25% Debentures Due 2027
$150,000,000 8.30% Debentures Due 2032
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PURCHASE AGREEMENT
May 1, 1997
Salomon Brothers Inc
As Representative of the Initial Purchasers
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
CSX CORPORATION, a Virginia corporation (the "Company"), proposes to issue and sell to the parties named in Schedule I hereto (the "Initial Purchasers"), for whom you are acting as representative (the "Representative"), $350,000,000 principal amount of its 7.05% Debentures due 2002 (the "2002 Debentures"), $300,000,000 principal amount of its 7.25% Debentures due 2004 (the "2004 Debentures"), $450,000,000 principal amount of its 7.45% Debentures due 2007 (the "2007 Debentures"), $400,000,000 principal amount of its 7.90% Debentures due 2017 (the "2017 Debentures"), $500,000,000 principal amount of its 7.95% Debentures due 2027 (the "7.95% 2027 Debentures"), $100,000,000 principal amount of its 6.95% Debentures due 2027 (the "6.95% 2027 Debentures"), $250,000,000 principal amount of its 7.25% Debentures due 2027 (the "7.25% 2027 Debentures") and $150,000,000 principal amount of its 8.30% Debentures due 2032 (the "2032 Debentures" and, collectively with the 2002 Debentures, the 2004 Debentures, the 2007 Debentures, the 2017 Debentures, the 7.95% 2027 Debentures, the 6.95% 2027 Debentures and the 7.25% 2027 Debentures, the "Securities"). The Securities are to be issued under an indenture (the "Indenture") dated as of August 1, 1990 between the Company and The Chase Manhattan Bank, as trustee, as supplemented and amended by the First Supplemental Indenture dated as of June 15, 1991 and the Second Supplemental Indenture to be dated as of the First Closing Date (as defined below).
The sale of the Securities to the Initial Purchasers will be made without registration of the Securities under the Securities Act of 1933, as amended (the "Securities Act"), in reliance upon exemptions from the registration requirements of the Securities Act. You have advised the Company that the Initial Purchasers will offer and sell the Securities purchased by them hereunder in accordance with Section 4 hereof as soon as you deem advisable.
Holders of the Securities will be entitled to the benefits of the Registration Rights Agreement (the "Registration Rights Agreement"), to be dated the First Closing Date (as defined below), in each case among the Company and the Initial Purchasers. The Registration Rights Agreement will be as described in the Preliminary Offering Memorandum (as defined below), with such changed, other or additional terms reasonably acceptable to the Company and the Initial Purchasers.
In connection with the sale of the Securities, the Company has prepared a preliminary offering memorandum, dated April 22, 1997 (including any and all exhibits thereto and any information incorporated by reference therein, the "Preliminary Memorandum") and a final offering memorandum, dated May 1, 1997 (including any and all exhibits thereto and any information incorporated by reference therein, the "Final Memorandum"). Each of the Preliminary Memorandum and the Final Memorandum sets forth certain information concerning the Company and the Securities. The Company hereby confirms that it has authorized the use of the Preliminary Memorandum and the Final Memorandum, and any amendment or supplement thereto, in connection with the offer and sale of the Securities by the Initial Purchasers. Unless stated to the contrary, all references herein to the Final Memorandum are to the Final Memorandum at the Execution Time (as defined below) and are not meant to include any amendment or supplement, or any information incorporated by reference therein, subsequent to the Execution Time, and any reference to the terms "amend," "amendment" or "supplement" with respect to the Final Memorandum shall be deemed to refer to and include any information filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the Execution Time which is incorporated by reference therein.
the Company makes no representation or warranty as to the information contained in or omitted from the Final Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Initial Purchasers through the Representative specifically for inclusion therein. All documents incorporated by reference in the Final Memorandum which were filed under the Exchange Act on or before the Execution Time complied, and all such documents which are filed under the Exchange Act after the Execution Time and on or before the applicable Closing Date will comply, in all material respects with the applicable requirements of the Exchange Act and the rules thereunder.
(b) The Company has not taken and will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities (other than any stabilization done by the Initial Purchasers, as to which the Company makes no representation).
(c) Neither the Company, nor any of its Affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act ("Regulation D")), nor any person acting on its or their behalf has, directly or indirectly, made offers or sales of any security, or solicited offers to buy any security, which are or could be integrated with the sale of the Securities in a manner that would require the registration of the Securities under the Securities Act.
(d) Neither the Company, nor any person acting on its behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D) in connection with any offer or sale of the Securities in the United States.
(e) Assuming the accuracy of the representations and warranties and compliance with the agreements made by the Initial Purchasers herein, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers under, or in connection with the initial resale of such Securities by the Initial Purchasers in the manner contemplated by, this Agreement to register the Securities under the Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended.
(f) No securities of the Company are of the same class (within the meaning of Rule 144A under the Securities Act) as the Securities and listed on a national securities exchange registered under Section 6 of the Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(g) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf has engaged in any directed selling efforts with respect to the
Securities, and each of them has complied with the offering restrictions requirement of Regulation S ("Regulation S") under the Securities Act. Terms used in this paragraph have the meanings given to them by Rule 902(b) of Regulation S.
(h) The Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(i) The Company is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "Investment Company Act"), without taking account of any exemption arising out of the number of holders of the Company's securities.
(j) The Company has not paid or agreed to pay to any person any compensation for soliciting another to purchase any securities of the Company (except as contemplated by this Agreement).
(k) The information, if any, provided by the Company pursuant to
Section 5(h) hereof will not, at the date thereof, contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
"Closing Dates"). Delivery of the Securities shall be made to the Representative for the respective accounts of the Initial Purchasers against payment by the Initial Purchasers through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer of Federal funds or other immediately available funds or in such other manner of payment as may be agreed by the Company and the Representative.
Delivery of any Securities to be issued in definitive certificated form shall be made on the applicable Closing Date at such location, and in such names and denominations, as the Representative shall designate at least two business days in advance of the applicable Closing Date. Each Company agrees to have the Securities available for inspection, checking and packaging by the Representative in New York, New York, not later than 1:00 PM on the business day prior to the applicable Closing Date. Each closing for the purchase and sale of the Securities shall occur at the office of Shearman & Sterling, 599 Lexington Avenue, New York, New York ("Counsel for the Initial Purchasers") or such other place as the parties hereto shall agree.
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act) and
that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware
that such sale is being made in reliance on Rule 144A, (ii) to other
institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D) who provide to it and to the Company a letter
in the form of Annex A to the Final Memorandum or (iii) in accordance with
the restrictions set forth in Exhibit A hereto.
(b) Neither it, nor any person acting on its behalf, has engaged, or will engage in any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D) in connection with any offer or sale of Securities in the United States, except as contemplated by the Registration Rights Agreement.
(c) Each Initial Purchaser shall deliver to each purchaser of Securities therefrom, in connection with its original distribution of the Securities, a copy of the Final Memorandum, as amended and supplemented at the date of such purchase, except with respect to sales of Securities made to non-U.S. persons in reliance on Regulation S.
(a) The Company will furnish to each Initial Purchaser and to Counsel for the Initial Purchasers, without charge, during the period referred to in paragraph (c) below, as many copies of the Final Memorandum and any amendments and supplements thereto as it may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
advise the Company, in writing, of the completion of the initial distribution of the Securities.
(e) The Company will not, and will not permit any of its Affiliates to, resell any Securities that have been acquired by any of them.
(f) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, which are or could be integrated with the sale of the Securities in a manner that would require the registration of the Securities under the Securities Act.
(g) Neither the Company, nor any person acting on its behalf, will engage in any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D) in connection with any offer or sale of the Securities in the United States, except as contemplated by the Registration Rights Agreement.
(h) So long as any of the Securities are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to Section 13 or 15(d) of the Exchange Act, provide to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act.
(i) The Company shall, during any period in the two years after the Closing Date in which the Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, timely file all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any other reports, statements, documents, registrations, filings or submissions required to be filed by the Company with the Commission pursuant to the Exchange Act.
(j) Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf will engage in any directed selling efforts with respect to the Securities, and each of them will comply with the offering restrictions requirement of Regulation S. Terms used in this paragraph have the meanings given to them by Rule 902(b) of Regulation S.
(k) The Company will cooperate with the Representative and use its reasonable best efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(l) If requested by the Initial Purchasers, the Company shall use its reasonable best efforts to cause Securities sold in reliance on Rule 144A to be eligible for the PORTAL trading system of the National Association of Securities Dealers, Inc.
(m) Until such time as any Security is registered under the Securities Act pursuant to the Registration Rights Agreement and transferred pursuant to such registration, the Company shall include a legend on the Securities to the effect as set forth under "Notice to Investors" in the Final Memorandum.
(a) The Company shall have furnished to the Initial Purchasers the opinion of the General Counsel, or an Assistant General Counsel, of the Company, dated the applicable Closing Date, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the Commonwealth of Virginia, with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Final Memorandum; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which it owns or leases substantial properties or in which the conduct of its business requires such qualification except where the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered as one enterprise;
(ii) Each significant subsidiary as defined in Rule 405 of Regulation C of the Securities Act (each a "Significant Subsidiary") of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Final Memorandum; and, to the best of such counsel's knowledge, is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries, considered as one enterprise; all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable, and, except for directors' qualifying shares, if any, is owned by the Company free and clear of any mortgage, pledge, lien, encumbrance, claim or equity;
(iii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated herein, except such as may be required under state securities laws; and
(iv) The execution, delivery and performance of the Indenture, this Agreement, the Registration Rights Agreement and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a material breach or violation of any of the terms and provisions of, or constitute a default under, any statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company or any Significant Subsidiary or any of their properties or, to the best of such counsel's knowledge, any agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any Significant Subsidiary is bound or to which any of the properties of the Company or any Significant Subsidiary is subject, or the charter or by-laws of the Company or any Significant Subsidiary, and the Company has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement.
In addition, such counsel shall state that he or she has participated in conferences with officers and other representatives of the Company, representatives of Ernst & Young, independent auditors for the Company, and the Representative, at which the contents of the Final Memorandum and any amendment thereof or supplement thereto and related matters were discussed and although such counsel has
not undertaken to investigate or verify independently, and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum or any amendment thereof or supplement thereto, no facts have come to the attention of such counsel which would lead such counsel to believe that at the Execution Time the Final Memorandum (other than the historical, proforma, projected or other financial statements, information and data and statistical information and data included or incorporated by reference therein, in each case as to which no opinion need be given) contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Final Memorandum (other than the historical, proforma, projected or other financial statements, information and data and statistical information and data included or incorporated by reference therein, in each case as to which no opinion need be given) at the applicable Closing Date includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Except as otherwise set forth herein, all references in this Section 6(a) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the applicable Closing Date.
(b) The Company shall have furnished to the Initial Purchasers the opinion of McGuire, Woods, Battle & Boothe, L.L.P., counsel for the Company, dated the applicable Closing Date, to the effect that:
(i) The Indenture has been duly authorized, executed and delivered by the Company; the Securities have been duly authorized, executed, issued and delivered by the Company; the Indenture and the Securities, when authenticated in the manner provided in the Indenture, constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (in rendering such opinion, such counsel may assume that the Indenture has been duly authorized, executed and delivered, and the Securities have been duly authenticated, by the Trustee); and the Securities conform to the description thereof contained in the Final Memorandum;
(ii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (in rendering such opinion, such counsel may assume due authorization, execution
and delivery by parties thereto other than the Company), provided, however, that no opinion is rendered as to the enforceability against the Company of any rights to indemnification or contribution included therein; and the Registration Rights Agreement conforms to the description thereof contained in the Final Memorandum;
(iii) This Agreement has been duly authorized, executed and delivered by the Company;
(iv) Assuming the accuracy of the representations and warranties and compliance with the agreements made by the Company and the Initial Purchasers herein, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers under, or in connection with the initial resale of such Securities by the Initial Purchasers in the manner contemplated by, this Agreement to register the Securities under the Securities Act or to qualify the Indenture, as amended, under the Trust Indenture Act of 1939, as amended;
(vi) The Company is not an "investment company" within the meaning of the Investment Company Act without taking account of any exemption arising out of the number of holders of the Company's securities;
(vii) The statements in the Final Memorandum under the captions "Description of Debentures" and "Exchange Offers; Registration Rights", insofar as they purport to summarize certain provisions of the Securities and the Registration Rights Agreement, are accurate summaries of such provisions; and
(viii) The information contained in the Final Memorandum under the caption "Certain Federal Income Tax Considerations for Non-U.S. Holders", to the extent that it constitutes matters of law or legal conclusions, has been reviewed by such counsel and is correct in all material respects.
In addition, subject to such counsel's customary qualifications about the scope of its obligations in connection with its participation in the preparation of documents, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, representatives of Ernst & Young, independent auditors for the Company, the Representative, and Counsel for the Initial Purchasers at which the contents of the Final Memorandum and any amendment thereof or supplement thereto and related matters were discussed and although such counsel have not undertaken to investigate or verify independently, and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum or any amendment thereof or supplement thereto, and did not participate in the preparation of the documents incorporated by reference in the Final
Memorandum, no facts have come to the attention of such counsel which would lead such counsel to believe that at the Execution Time the Final Memorandum (other than the historical, proforma, projected or other financial statements, information and data and statistical information and data included or incorporated by reference therein, in each case as to which no opinion need be given) contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Final Memorandum at the applicable Closing Date (other than the historical, proforma, projected or other financial statements, information and data and statistical information and data included or incorporated by reference therein, in each case as to which no opinion need be given) includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
In rendering such opinion, McGuire, Woods, Battle & Boothe, L.L.P. may rely (A) as to matters governed by New York law upon the opinion of Counsel for the Initial Purchasers, referred to below and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. Except as otherwise set forth herein, all references in this Section 6(b) to the Final Memorandum shall be deemed to include any amendment or supplement thereto at the applicable Closing Date.
(c) The Representative shall have received from Counsel for the Initial Purchasers such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Final Memorandum (as amended or supplemented at the applicable Closing Date) and other related matters as they may require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Counsel for the Initial Purchasers may rely as to the incorporation of the Company on the opinion of the General Counsel or Assistant General Counsel of the Company and as to all other matters governed by Virginia law upon the opinion of McGuire, Woods, Battle & Boothe, L.L.P., referred to above.
(d) The Company shall have furnished to the Representative a certificate of the Company, signed by the Chairman of the Board or the President or an Executive Vice President or the Managing Director-Corporate Finance and another person who is the principal financial or accounting officer of the Company, dated the applicable Closing Date, to the effect that the signers of such certificate have examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that, to the best of their knowledge after reasonable investigation:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the
applicable Closing Date with the same effect as if made on and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; and
(ii) since the date of the most recent financial statements incorporated by reference in the Final Memorandum, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto) or as described in such certificate.
(e) (A) At the Execution Time, Ernst & Young, LLP shall have furnished to the Representative a letter, dated as of the Execution Time, in form and substance satisfactory to the Representative, confirming that they are independent accountants within the meaning of the Securities Act and the applicable rules and regulations thereunder and containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Final Memorandum and (B) at the applicable Closing Date, Ernst & Young, LLP shall have furnished to the Representative a letter dated such date, to the effect that they reaffirm the statements made in the letter furnished pursuant to clause (A), except that the specified date referred to shall be a date not more than three business days prior to the applicable Closing Date.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Representative, so material and adverse as to make it impractical or inadvisable to market the Securities as contemplated by the Final Memorandum (exclusive of any amendment or supplement thereof or thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
Prior to the applicable Closing Date, the Company shall furnish to the Representative such conformed copies of such opinions, certificates, letters and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representative and Counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder with respect to the 2002 Debentures, the 2004 Debentures, the 2007 Debentures, the 2017 Debentures, the 7.95% 2027 Debentures, the 6.95% 2027 Debenture, the 7.25% 2027 Debentures, and/or the 2032 Debentures, as the case may be, may be canceled at, or at any time prior to, the applicable Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or telefax confirmed in writing.
The documents required to be delivered by this Section 6 will be delivered at the office of Counsel for the Initial Purchasers, at 599 Lexington Avenue, New York, New York, on the applicable Closing Date.
(b) Each Initial Purchaser severally agrees to indemnify and hold
harmless the Company, its directors, its officers, and each person who controls
the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Initial Purchaser, but only with respect to claims and
actions based upon written information relating to such Initial Purchaser
furnished to the Company by or on behalf of such Initial Purchaser through the
Representative specifically for inclusion in the Preliminary Memorandum or the
Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser may
otherwise have. The Company acknowledges that the statements set forth in the
first two sentences of the last paragraph of the cover page, and the first and
second sentences of the second paragraph, the second sentence of the third
paragraph and the first three sentences of the last paragraph under the heading
"Plan of Distribution" in the Preliminary Memorandum and the Final Memorandum
constitute the only information furnished in writing by or on behalf of the
Initial Purchasers for inclusion in the Preliminary Memorandum or the Final
Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Initial Purchasers agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively "Losses") to which the Company and one or more of the Initial Purchasers may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and by the Initial
agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Initial Purchasers shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such non-defaulting Initial Purchasers do not purchase all the Securities within 36 hours of such default, this Agreement will terminate without liability to any non-defaulting Initial Purchaser or the Company except as otherwise provided in Section 11. In the event of a default by any Initial Purchaser as set forth in this Section 9, the applicable Closing Date shall be postponed for such period, not exceeding seven days, as the Representative shall determine in order that the required changes in the Final Memorandum or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Initial Purchaser of its liability, if any, to the Company or to any non- defaulting Initial Purchaser for damages occasioned by its default hereunder.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement between the Company and the Initial Purchasers.
Very truly yours,
CSX CORPORATION
By /s/ David D. Owen ------------------------------------------ Name: David D. Owen Title: Managing Director-Corporate Finance |
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
By /s/ James J. Ryan ------------------------------- Name: James J. Ryan Title: Managing Director |
For themselves and the other
Initial Purchasers named in
Schedule I to the foregoing Agreement
SCHEDULE I
Security Purchase Price/*/
-------- -----------------
2002 Debentures.......................... 99.335
2004 Debentures.......................... 99.355
2007 Debentures.......................... 99.199
2017 Debentures.......................... 99.067
7.95% 2027 Debentures.......................... 98.607
6.95% 2027 Debentures/1/....................... 99.335
7.25% 2027 Debentures/2/....................... 99.126
2032 Debentures/3/....................... 99.125
|
Redemption
Year Price
---- ----------
2007 104.150%
2008 103.735%
2009 103.320%
2010 102.905%
2011 102.490%
2012 102.075%
2013 101.660%
2014 101.245%
2015 100.830%
2016 100.415%
2017 and thereafter 100.000%
|
SCHEDULE II
Principal Amount of
2002 Debentures
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc.......................... $81,668,000
Credit Suisse First Boston Corporation........ 81,666,000
Chase Securities Inc.......................... 81,666,000
Goldman, Sachs & Co........................... 35,000,000
Morgan Stanley & Co. Incorporated............. 35,000,000
NationsBanc Capital Markets, Inc.............. 35,000,000
-----------
Total........................... $350,000,000
============
|
Principal Amount of
2004 Debentures
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc.......................... $70,000,000
Credit Suisse First Boston Corporation........ 70,000,000
Chase Securities Inc.......................... 70,000,000
Goldman, Sachs & Co........................... 30,000,000
Morgan Stanley & Co. Incorporated............. 30,000,000
NationsBanc Capital Markets, Inc.............. 30,000,000
-----------
Total........................... $300,000,000
============
|
Principal Amount of
2007 Debentures
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc.......................... $105,000,000
Credit Suisse First Boston Corporation........ 105,000,000
Chase Securities Inc.......................... 105,000,000
Goldman, Sachs & Co........................... 45,000,000
Morgan Stanley & Co. Incorporated............. 45,000,000
NationsBanc Capital Markets, Inc.............. 45,000,000
---------
Total........................... $450,000,000
============
|
Principal Amount of
2017 Debentures
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc.......................... $93,334,000
Credit Suisse First Boston Corporation........ 93,333,000
Chase Securities Inc.......................... 93,333,000
Goldman, Sachs & Co........................... 40,000,000
Morgan Stanley & Co. Incorporated............. 40,000,000
NationsBanc Capital Markets, Inc.............. 40,000,000
---------
Total........................... $400,000,000
============
|
Principal Amount of
7.95% 2027
Debentures
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc.......................... $116,668,000
Credit Suisse First Boston Corporation........ 116,666,000
Chase Securities Inc.......................... 116,666,000
Goldman, Sachs & Co........................... 50,000,000
Morgan Stanley & Co. Incorporated............. 50,000,000
NationsBanc Capital Markets, Inc.............. 50,000,000
-----------
Total........................... $500,000,000
============
|
Principal Amount of
6.95% 2027
Debentures
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc.......................... $23,334,000
Credit Suisse First Boston Corporation........ 23,333,000
Chase Securities Inc.......................... 23,333,000
Goldman, Sachs & Co........................... 10,000,000
Morgan Stanley & Co. Incorporated............. 10,000,000
NationsBanc Capital Markets, Inc.............. 10,000,000
----------
Total........................... $100,000,000
============
|
Principal Amount of
7.25% 2027
Debentures
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc.......................... $58,334,000
Credit Suisse First Boston Corporation........ 58,333,000
Chase Securities Inc.......................... 58,333,000
Goldman, Sachs & Co........................... 25,000,000
Morgan Stanley & Co. Incorporated............. 25,000,000
NationsBanc Capital Markets, Inc.............. 25,000,000
----------
Total........................... $250,000,000
============
|
Principal Amount of
2032 Debentures
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc.......................... $35,000,000
Credit Suisse First Boston Corporation........ 35,000,000
Chase Securities Inc.......................... 35,000,000
Goldman, Sachs & Co........................... 15,000,000
Stanley & Co. Incorporated.................... 15,000,000
NationsBanc Capital Markets, Inc.............. 15,000,000
----------
Total........................... $150,000,000
============
|
EXHIBIT A
(1) (a) The Securities have not been and will not be registered under
the Securities Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. Each Initial Purchaser
represents and agrees that, except as otherwise permitted by Section 4(a)(i) or
(ii) of the Agreement to which this is an exhibit, it has offered and sold the
Securities, and will offer and sell the Securities, (i) as part of their
distribution at any time and (ii) otherwise until 40 days after the later of the
commencement of the offering and the applicable Closing Date, only in accordance
with Rule 903 of Regulation S under the Securities Act. Accordingly, each
Initial Purchaser represents and agrees that neither it, nor any of its
affiliates nor any person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities, and that
it and they have complied and will comply with the offering restrictions
requirement of Regulation S. Each Initial Purchaser agrees that, at or prior to
the confirmation of sale of Securities (other than a sale of Securities pursuant
to Section 4(a)(i) or (ii) of the Agreement to which this is an exhibit), it
shall have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during
the restricted period a confirmation or notice substantially to the following
effect:
"The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering and the applicable Closing Date, except in either case in accordance with Regulation S or Rule 144A under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not entered and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has not offered or sold, and prior to the expiration of the period six months from the applicable Closing Date herein will not offer or sell any Securities to persons in the United Kingdom except to those
persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for purpose of their business or otherwise in circumstances that have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995, (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 1986 of the United Kingdom with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the document may otherwise lawfully be issued or passed on.
EXHIBIT 4.5
EXECUTION COPY
CSX CORPORATION
$2,500,000,000
$350,000,000 7.05% Debentures due 2002
$300,000,000 7.25% Debentures due 2004
$450,000,000 7.45% Debentures due 2007
$400,000,000 7.90% Debentures due 2017
$500,000,000 7.95% Debentures due 2027
$100,000,000 6.95% Debentures due 2027
$250,000,000 7.25% Debentures due 2027
$150,000,000 8.30% Debentures due 2032
REGISTRATION RIGHTS AGREEMENT
Dated: May 6, 1997
CSX CORPORATION
$2,500,000,000
$350,000,000 7.05% DEBENTURES DUE 2002
$300,000,000 7.25% DEBENTURES DUE 2004
$450,000,000 7.45% DEBENTURES DUE 2007
$400,000,000 7.90% DEBENTURES DUE 2017
$500,000,000 7.95% DEBENTURES DUE 2027
$100,000,000 6.95% DEBENTURES DUE 2027
$250,000,000 7.25% DEBENTURES DUE 2027
$150,000,000 8.30% DEBENTURES DUE 2032
REGISTRATION RIGHTS AGREEMENT
New York, New York
May 6, 1997
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
CSX Corporation, a Virginia corporation (the "Company"), proposes to issue and sell to certain purchasers (the "Purchasers"), upon the terms set forth in a purchase agreement of even date herewith (the "Purchase Agreement"), its 7.05% Debentures due 2002 (the "2002 Debentures"), its 7.25% Debentures due 2004 (the "2004 Debentures"), its 7.45% Debentures due 2007 (the "2007 Debentures"), its 7.90% Debentures due 2017 (the "2017 Debentures"), its 6.95% Debentures due 2027 (the "6.95% 2027 Debentures"), its 7.95% Debentures due 2027 (the "7.95% 2027 Debentures"), its 7.25% Debentures due 2027 (the "7.25% 2027 Debentures") and its 8.30% Debentures due 2032 (the "2032 Debentures" and, together with the 2002 Debentures, the 2004 Debentures, the 2007 Debentures, the 2017 Debentures, the 7.95% 2027 Debentures, the 6.95% 2027 Debentures and the 7.25% 2027 Debentures, the "Securities") (the "Initial Placement"). As an inducement to the Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Initial Purchasers thereunder, the Company agrees with you, (i) for your benefit and the benefit of the other Purchasers and (ii) for the benefit of the holders from time to time of the Securities (including you and the other Purchasers) (each of the foregoing a "Holder" and together the "Holders"), as follows:
Offers, all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
or interest rate step-up provisions) to be issued under the Registered Exchange Offers in exchange for the 7.25% 2027 Debentures.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offers, it being the objective of such Registered Exchange Offers to enable each Holder electing to exchange Securities for Exchange Securities (assuming that such Holder is not an Affiliate of the Company within the meaning of the Act, acquires the Exchange Securities in the ordinary
course of such Holder's business and at the time of the commencement of the Exchange Offers, has no arrangements with any person to participate in the distribution (within the meaning of the Act) of the Exchange Securities) to transfer such Exchange Securities from and after their receipt without any limitations or restrictions under the Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offers, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30 days (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered Exchange Offers with an address in the Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of each Registered Exchange Offer, the Company shall:
(i) accept for exchange all Securities tendered and not validly withdrawn pursuant to such Registered Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder of tendered Securities a principal amount of Exchange Securities equal in principal amount to the Securities of such Holder so accepted for exchange.
(e) The Purchasers and the Company acknowledge that, pursuant to interpretations by the Commission's staff of Section 5 of the Act, and in the absence of an applicable exemption therefrom, each Exchanging Dealer is required to deliver a Prospectus in connection with a sale of any Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offers in exchange for Securities acquired for its own account as a result of market- making activities or other trading activities. Accordingly, the Company shall:
(i) include the information set forth in Annex A hereto on the cover of the Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange Offer Registration Statement in a section setting forth details of the Registered Exchange Offers, and in Annex C hereto in the underwriting or plan of distribution section of the Prospectus forming a part of the Exchange Offer Registration Statement, and include the information set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered Exchange Offers; and
(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act during the Exchange Offer
Registration Period for delivery of the Prospectus forming a part thereof
by Exchanging Dealers in connection with sales of Exchange Securities
received pursuant to the Registered Exchange Offers, as contemplated by
Section 4(h) below.
under this paragraph (a) with respect thereto, and any such Exchange Offer Registration Statement, as so amended, shall be referred to herein as, and governed by the provisions herein applicable to, a Shelf Registration Statement.
(a) The Company shall furnish to the Purchasers, prior to the filing thereof with the Commission, a copy of any Shelf Registration Statement and any Exchange Offer Registration Statement, and each amendment thereof and each amendment or supplement, if any, to the Prospectus included therein, and shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as you reasonably may propose.
(b) The Company shall ensure that (i) any Registration Statement and any amendment thereto and any Prospectus forming part thereof and any amendment or supplement thereto complies in all material respects with the Act and the rules and regulations thereunder, (ii) any Registration Statement and any amendment thereto does not, when it becomes effective, 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 and (iii) any Prospectus forming part of any Registration Statement, and any amendment or supplement to such Prospectus, does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.
(c) (1) The Company shall advise you and, in the case of a Shelf Registration Statement, the Holders of Securities covered thereby, and, if requested by you or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus included therein or for additional information.
(2) The Company shall advise you and, in the case of a Shelf Registration Statement, the Holders of Securities covered thereby, and, in the case of an Exchange Offer Registration Statement, any Exchanging Dealer which has provided in writing to the Company a telephone or facsimile number and address for notices, and, if requested by you or any such Holder or Exchanging Dealer, confirm such advice in writing of the inability to use the Shelf Registration Statement for resales of the Securities or the Exchange Securities as a result of:
(i) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(ii) the receipt by the Company of any notification with respect to the suspension of the qualification of the securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(iii) a Suspension; and
(iv) the happening of any event that requires the making of any changes in the Registration Statement or the Prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading (which advice shall be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made).
(d) The Company shall use its best efforts to prevent the issuance and if issued to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities included within the coverage of any Shelf Registration Statement, without charge, at least one copy of such Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver to each Holder of Securities included within the coverage of any Shelf Registration Statement, without charge, as many copies of the Prospectus (including each preliminary Prospectus) included in such Shelf Registration Statement and any amendment or supplement thereto as such Holder may reasonably request; and the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling Holders of Securities in connection with the offering and sale of the Securities covered by the Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer that so requests, without charge, at least one copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, including financial statements and schedules, any documents incorporated by reference therein, and, if the Exchanging Dealer so requests in writing, all exhibits (including those incorporated by reference).
(h) The Company shall, during the Exchange Offer Registration Period, promptly deliver to each Exchanging Dealer, without charge, as many copies of the Prospectus included in such Exchange Offer Registration Statement and any amendment or supplement thereto as such Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer in connection with a sale of Exchange Securities received by it pursuant to the Registered Exchange Offers; and the Company consents to the use of the Prospectus or any amendment or supplement thereto by any such Exchanging Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offers or any other offering of Securities pursuant to any Registration Statement, the Company shall use its reasonable best efforts to register or qualify or cooperate with the Holders of Securities included therein and their respective counsel in connection with the registration or qualification of such Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any such Holders reasonably request in writing and do any and all other acts or things necessary or advisable to enable the
(j) Unless the applicable securities shall be in book-entry only form, the Company shall cooperate with the Holders of Securities or Exchange Securities to facilitate the timely preparation and delivery within the times required by normal way of settlement of certificates representing securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such authorized denominations and registered in such names as Holders may request prior to sales of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraphs
(c)(1)(ii) or (c)(2)(iv) above, the Company shall promptly prepare a post-
effective amendment to any Registration Statement or an amendment or supplement
to the related Prospectus or file any other required document so that, as
thereafter delivered to purchasers of the securities included therein, the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(l) Not later than the effective date of any Shelf Registration Statement hereunder, the Company shall provide a CUSIP number for the Securities or Exchange Securities, as the case may be, registered under such Registration Statement, and provide the applicable trustee with printed certificates for such Securities or Exchange Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Company shall use its best efforts to comply with all applicable rules and regulations of the Commission and shall make generally available to its security holders as soon as practicable after the effective date of the applicable Registration Statement an earnings statement satisfying the provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture or the Exchange Securities Indenture, as the case may be, to be qualified under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of Securities to be sold pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding such Holder and the distribution of such Securities as the Company may from time to time reasonably require for inclusion in such Registration Statement.
(p) The Company shall, if requested by the Managing Underwriters or the Holders of Securities covered by such Shelf Registration Statement incorporate in a Prospectus supplement or post-effective amendment to a Shelf Registration Statement, such information with respect to such Managing Underwriters and Holders as such Managing Underwriters and Majority Holders reasonably agree should be included therein and shall make all required filings of such Prospectus supplement or post-effective amendment as soon as practically possible after written notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the Company shall enter into such agreements (including underwriting agreements) and take all other appropriate actions in order to expedite or facilitate the registration or the disposition of the Securities or the Exchange Securities, as the case may be, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification provisions and procedures no less favorable than those set forth in Section 6 (or such other provisions and procedures acceptable to the Majority Holders and the Managing Underwriters, if any) with respect to all parties to be indemnified pursuant to Section 6.
(ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or is necessary in connection with any action, suit or proceeding or (iii) the information in such Records has been made generally available to the public. Each selling Holder of such Securities will be required as a condition to the receipt of such information to agree in writing that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company unless and until such is made generally available to the public. Each selling Holder of such Securities will be required to further agree in writing that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company at its expense to undertake appropriate action to prevent disclosure of the Records deemed confidential; (iii) make such representations and warranties to the Holders of securities registered thereunder and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (iv) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters, if any) addressed to each selling Holder and the underwriters, if any, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions); (v) obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling Holder of Securities registered thereunder and the underwriters, if any, in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with primary underwritten offerings; and (vi) deliver such documents and certificates as may be reasonably requested by the Majority Holders and the Managing Underwriters, if any, including those to evidence compliance with Section 4(k) and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section 4(r) shall be performed at (A) the effectiveness of such Registration Statement and each post- effective amendment thereto and (B) each closing under any underwriting or similar agreement as and to the extent required thereunder.
reasonable fees and disbursements of one firm or counsel, reasonably satisfactory to the Company, designated by the Majority Holders to act as counsel for the Holders in connection therewith, and, in the case of any Exchange Offer Registration Statement, will reimburse the Purchasers for the reasonable fees and disbursements of one counsel, reasonably satisfactory to the Company, acting in connection therewith.
The Company also agrees to indemnify or contribute to Losses of, as provided in Section 6(d), any underwriters of Securities or Exchange Securities registered under a Shelf Registration Statement, their officers and directors and each person who controls such underwriters on substantially the same basis as that of the indemnification of the Purchaser and the selling Holders provided in this Section 6(a) and shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section 4(q) hereof.
(b) Each Holder of Securities or Exchange Securities covered by a Registration Statement (including each Purchaser and, with respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer) severally agrees to
indemnify and hold harmless (i) the Company, (ii) each of its directors, (iii)
each of its officers who signs such Registration Statement and (iv) each person
who controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to each such Holder, but only with reference to claims and
actions based upon written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding. An indemnifying party shall not be liable under this Section 6 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise, or consent is consented to by such indemnifying party, which consent shall not be unreasonably withheld.
which resulted in such Losses. Relative fault shall be determined by reference to whether any alleged untrue statement or omission relates to information provided by the indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The parties agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 6, each person who controls a Holder within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act and each director, officer, employee and agent of such Holder shall have the same rights to contribution as such Holder, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder, the Company or any of the officers, directors or controlling persons referred to in this Section 6, and will survive the sale by a Holder of securities covered by a Registration Statement.
Statement and that does not directly or indirectly affect the rights of other Holders may be given by the Majority Holders, determined on the basis of securities being sold rather than registered under such Registration Statement.
(1) if to a Holder, at the most current address given by such Holder to the Company in accordance with the provisions of this Section 7(c), which address initially is, with respect to each Holder, the address of such Holder maintained by the Registrar under the Indenture, with a copy in like manner to Salomon Brothers Inc;
(2) if to you, initially at the address set forth in the Purchase Agreement; and
(3) if to the Company, initially at its address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery.
The Purchasers or the Company by notice to the other may designate additional or different addresses or telex or telecopy numbers for subsequent notices or communications.
Please confirm that the foregoing correctly sets forth the agreement between the Company and you.
Very truly yours,
CSX CORPORATION
By: /s/ David D. Owen
-------------------------
Name: David D. Owen
Title: Managing Director-
Corporate Finance
Accepted in New York, New York
May 6, 1997
|
SALOMON BROTHERS INC
By: /s/ Fred Larsen ------------------------- Name: Fred Larsen Title: Vice President |
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Securities where such Exchange Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, starting on the Expiration Date (as defined in the Exchange Offer) and ending on the close of business 180 days after the consummation of the Exchange Offer, it will make this Prospectus available to any broker-dealer for use in connection with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in exchange for Securities, where such Securities were acquired by such broker- dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any sale or transfer of the Exchange Securities. See "Plan of Distribution."
ANNEX C
Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Securities where such Securities were acquired as a result of market-making activities or other trading activities. The Company has agreed that, starting on the Expiration Date and ending on the close of business on the first anniversary of the Expiration Date, it will make this Prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale.
The Company will not receive any proceeds from any sale of Exchange Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an "underwriter" within the meaning of the Act and any profit from any such resale of Exchange Securities and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Act. The Letter of Transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker- dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Act.
For a period of 180 days after the consummation of the Exchange Offer, the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offer (including the expenses of one counsel for the holders of the Securities) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the Securities (including any broker-dealers) against certain liabilities, including liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507 and/or 508.]
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE
ADDITIONAL COPIES OF THE PROSPECTUS AND COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
The undersigned represents that it is not an affiliate of the Company, that any Exchange Securities to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Registered Exchange Offer it had no arrangement with any person to participate in a distribution of Exchange Securities.
In addition, if the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Securities, it represents that the Securities to be exchanged for Exchange Securities were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
EXHIBIT 12.1
CSX Corporation
Ratio of Earnings to Fixed Charges
(Dollars in millions)
For the Fiscal
Quarters Ended For the Fiscal Years Ended
-------------------- -------------------------------------------------
Mar. 28, Mar. 29, Dec. 27, Dec. 29, Dec. 30, Dec. 31, Dec. 31,
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
Earnings
Earnings (loss) before income taxes $ 233 $ 224 $1,316 $ 974 $1,006 $ 633 $ (7)
Interest expense 84 60 249 270 281 298 276
Amortization of debt discount --- --- 2 2 3 1 1
Interest portion of fixed rent 48 47 189 184 206 206 216
Undistributed earnings (loss) of unconsolidated
subsidiaries (1) (2) (6) 3 10 7 (2)
Minority interest 10 8 42 32 21 14 15
----- ----- ------ ------ ------ ------ ----
Earnings, as Adjusted $ 374 $ 337 $1,792 $1,465 $1,527 $1,159 $499
===== ===== ====== ====== ====== ====== ====
Fixed Charges
Interest expense $ 84 $ 60 $ 249 $ 270 $ 281 $ 298 $276
Capitalized interest expense 1 1 5 6 9 6 6
Amortization of debt discount --- --- 2 2 3 1 1
Interest portion of fixed rent 48 47 189 184 206 206 216
----- ----- ------ ------ ------ ------ ----
Fixed Charges $ 133 $ 108 $ 445 $ 462 $ 499 $ 511 $499
===== ===== ====== ====== ====== ====== ====
Ratio of Earnings to Fixed Charges 2.8x 3.1x 4.0x 3.2x 3.1x 2.3x 1.0x
===== ===== ====== ====== ====== ====== ====
|
EXHIBIT 15.1
AWARENESS LETTER OF PRICE WATERHOUSE LLP, INDEPENDENT ACCOUNTANTS
June 2, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that CSX Corporation has incorporated by reference our report dated April 16, 1997 related to Conrail Inc. (issued pursuant to the provisions of Statement on Auditing Standards No. 71) in its Registration Statement on Form S-4 to be filed on June 4, 1997. We are also aware of our responsibilities under the Securities Act of 1933.
Very truly yours,
/s/ Price Waterhouse LLP Thirty South Seventeenth Street Philadelphia, PA 19103 |
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the references to our firm under the captions "Selected Historical Financial Data for the Company" and "Experts" in the Registration Statement (Form S-4) and related Prospectus of CSX Corporation and subsidiaries, and to the incorporation by reference therein of our report dated January 31, 1997 (except for Note 2, as to which the date is March 7, 1997), with respect to the consolidated financial statements of CSX Corporation and subsidiaries included in its Annual Report on Form 10-K for the year ended December 27, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Richmond, Virginia
May 30, 1997
|
EXHIBIT 23.2
CONSENT OF PRICE WATERHOUSE LLP, INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-4 of CSX Corporation of our report dated January 21, 1997, except as to Note 2, which is as of March 7, 1997, on the consolidated financial statements of Conrail Inc. for the year ended December 31, 1996, which appears in the Current Report on Form 8-K of CSX Corporation filed June 4, 1997. We also consent to the references to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP Philadelphia, PA June 2, 1997 |
EXHIBIT 24.1
POWERS OF ATTORNEY OF CERTAIN DIRECTORS AND OFFICERS OF THE COMPANY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of them acting individually, his or her true and lawful attorneys-in- fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and file (i) one or more Registration Statements on Form S-3 (or other appropriate form) for filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), and any other documents in support thereof or supplemental or amendatory thereto, with respect to the issuance of debentures, notes, and other debt obligations, preferred stock, common stock, common stock issuable upon exchange or conversion of such debt obligations or preferred stock which, by their terms, are exchangeable for or convertible into common stock, warrants or rights to purchase debt obligations, preferred stock or common stock, and depositary shares representing fractional interests in preferred stock, which will generate proceeds of up to $3,000,000,000 (or the equivalent in foreign denominated currency), of the Corporation, and (ii) a Registration Statement, and any and all amendments thereto, relating to the offering covered thereby filed pursuant to Rule 462(b) under the Securities Act, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes or his substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 30th day of May, 1997.
/s/ John W. Snow
-----------------------------
John W. Snow
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of them acting individually, his or her true and lawful attorneys-in- fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and file (i) one or more Registration Statements on Form S-3 (or other appropriate form) for filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), and any other documents in support thereof or supplemental or amendatory thereto, with respect to the issuance of debentures, notes, and other debt obligations, preferred stock, common stock, common stock issuable upon exchange or conversion of such debt obligations or preferred stock which, by their terms, are exchangeable for or convertible into common stock, warrants or rights to purchase debt obligations, preferred stock or common stock, and depositary shares representing fractional interests in preferred stock, which will generate proceeds of up to $3,000,000,000 (or the equivalent in foreign denominated currency), of the Corporation, and (ii) a Registration Statement, and any and all amendments thereto, relating to the offering covered thereby filed pursuant to Rule 462(b) under the Securities Act, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes or his substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 30th day of May, 1997.
/s/ Paul R. Goodwin
-----------------------------
Paul R. Goodwin
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of them acting individually, his or her true and lawful attorneys-in- fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and file (i) one or more Registration Statements on Form S-3 (or other appropriate form) for filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), and any other documents in support thereof or supplemental or amendatory thereto, with respect to the issuance of debentures, notes, and other debt obligations, preferred stock, common stock, common stock issuable upon exchange or conversion of such debt obligations or preferred stock which, by their terms, are exchangeable for or convertible into common stock, warrants or rights to purchase debt obligations, preferred stock or common stock, and depositary shares representing fractional interests in preferred stock, which will generate proceeds of up to $3,000,000,000 (or the equivalent in foreign denominated currency), of the Corporation, and (ii) a Registration Statement, and any and all amendments thereto, relating to the offering covered thereby filed pursuant to Rule 462(b) under the Securities Act, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes or his substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 30th day of May, 1997.
/s/ James L. Ross ----------------------------- James L. Ross |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of them acting individually, his or her true and lawful attorneys-in- fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and file (i) one or more Registration Statements on Form S-3 (or other appropriate form) for filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), and any other documents in support thereof or supplemental or amendatory thereto, with respect to the issuance of debentures, notes, and other debt obligations, preferred stock, common stock, common stock issuable upon exchange or conversion of such debt obligations or preferred stock which, by their terms, are exchangeable for or convertible into common stock, warrants or rights to purchase debt obligations, preferred stock or common stock, and depositary shares representing fractional interests in preferred stock, which will generate proceeds of up to $3,000,000,000 (or the equivalent in foreign denominated currency), of the Corporation, and (ii) a Registration Statement, and any and all amendments thereto, relating to the offering covered thereby filed pursuant to Rule 462(b) under the Securities Act, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes or his substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 30th day of May, 1997.
/s/ Elizabeth E. Bailey ----------------------------- Elizabeth E. Bailey |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of them acting individually, his or her true and lawful attorneys-in- fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and file (i) one or more Registration Statements on Form S-3 (or other appropriate form) for filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), and any other documents in support thereof or supplemental or amendatory thereto, with respect to the issuance of debentures, notes, and other debt obligations, preferred stock, common stock, common stock issuable upon exchange or conversion of such debt obligations or preferred stock which, by their terms, are exchangeable for or convertible into common stock, warrants or rights to purchase debt obligations, preferred stock or common stock, and depositary shares representing fractional interests in preferred stock, which will generate proceeds of up to $3,000,000,000 (or the equivalent in foreign denominated currency), of the Corporation, and (ii) a Registration Statement, and any and all amendments thereto, relating to the offering covered thereby filed pursuant to Rule 462(b) under the Securities Act, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes or his substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 2nd day of April, 1997.
/s/ Robert L. Burrus, Jr. ----------------------------- Robert L. Burrus, Jr. |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of them acting individually, his or her true and lawful attorneys-in- fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign and file (i) one or more Registration Statements on Form S-3 (or other appropriate form) for filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), and any other documents in support thereof or supplemental or amendatory thereto, with respect to the issuance of debentures, notes, and other debt obligations, preferred stock, common stock, common stock issuable upon exchange or conversion of such debt obligations or preferred stock which, by their terms, are exchangeable for or convertible into common stock, warrants or rights to purchase debt obligations, preferred stock or common stock, and depositary shares representing fractional interests in preferred stock, which will generate proceeds of up to $3,000,000,000 (or the equivalent in foreign denominated currency), of the Corporation, and (ii) a Registration Statement, and any and all amendments thereto, relating to the offering covered thereby filed pursuant to Rule 462(b) under the Securities Act, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitutes or his substitute, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 1st day of April, 1997.
/s/ Bruce C. Gottwald ----------------------------- Bruce C. Gottwald |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of
CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes
and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of
them acting individually, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign and file
(i) one or more Registration Statements on Form S-3 (or other appropriate form)
for filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
documents in support thereof or supplemental or amendatory thereto, with respect
to the issuance of debentures, notes, and other debt obligations, preferred
stock, common stock, common stock issuable upon exchange or conversion of such
debt obligations or preferred stock which, by their terms, are exchangeable for
or convertible into common stock, warrants or rights to purchase debt
obligations, preferred stock or common stock, and depositary shares representing
fractional interests in preferred stock, which will generate proceeds of up to
$3,000,000,000 (or the equivalent in foreign denominated currency), of the
Corporation, and (ii) a Registration Statement, and any and all amendments
thereto, relating to the offering covered thereby filed pursuant to Rule 462(b)
under the Securities Act, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitutes or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 30th day of May, 1997.
/s/ John R. Hall
--------------------------------
John R. Hall
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of
CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes
and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of
them acting individually, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign and file
(i) one or more Registration Statements on Form S-3 (or other appropriate form)
for filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
documents in support thereof or supplemental or amendatory thereto, with respect
to the issuance of debentures, notes, and other debt obligations, preferred
stock, common stock, common stock issuable upon exchange or conversion of such
debt obligations or preferred stock which, by their terms, are exchangeable for
or convertible into common stock, warrants or rights to purchase debt
obligations, preferred stock or common stock, and depositary shares representing
fractional interests in preferred stock, which will generate proceeds of up to
$3,000,000,000 (or the equivalent in foreign denominated currency), of the
Corporation, and (ii) a Registration Statement, and any and all amendments
thereto, relating to the offering covered thereby filed pursuant to Rule 462(b)
under the Securities Act, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitutes or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 31st day of March, 1997.
/s/ Robert D. Kunisch
- ---------------------------------
Robert D. Kunisch
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of
CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes
and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of
them acting individually, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign and file
(i) one or more Registration Statements on Form S-3 (or other appropriate form)
for filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
documents in support thereof or supplemental or amendatory thereto, with respect
to the issuance of debentures, notes, and other debt obligations, preferred
stock, common stock, common stock issuable upon exchange or conversion of such
debt obligations or preferred stock which, by their terms, are exchangeable for
or convertible into common stock, warrants or rights to purchase debt
obligations, preferred stock or common stock, and depositary shares representing
fractional interests in preferred stock, which will generate proceeds of up to
$3,000,000,000 (or the equivalent in foreign denominated currency), of the
Corporation, and (ii) a Registration Statement, and any and all amendments
thereto, relating to the offering covered thereby filed pursuant to Rule 462(b)
under the Securities Act, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitutes or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 31st day of March, 1997.
/s/ Hugh L. McColl, Jr.
- ---------------------------------
Hugh L. McColl, Jr.
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of
CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes
and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of
them acting individually, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign and file
(i) one or more Registration Statements on Form S-3 (or other appropriate form)
for filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
documents in support thereof or supplemental or amendatory thereto, with respect
to the issuance of debentures, notes, and other debt obligations, preferred
stock, common stock, common stock issuable upon exchange or conversion of such
debt obligations or preferred stock which, by their terms, are exchangeable for
or convertible into common stock, warrants or rights to purchase debt
obligations, preferred stock or common stock, and depositary shares representing
fractional interests in preferred stock, which will generate proceeds of up to
$3,000,000,000 (or the equivalent in foreign denominated currency), of the
Corporation, and (ii) a Registration Statement, and any and all amendments
thereto, relating to the offering covered thereby filed pursuant to Rule 462(b)
under the Securities Act, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitutes or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 31st day of March, 1997.
/s/ James W. McGlothlin
- ---------------------------------
James W. McGlothlin
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of
CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes
and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of
them acting individually, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign and file
(i) one or more Registration Statements on Form S-3 (or other appropriate form)
for filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
documents in support thereof or supplemental or amendatory thereto, with respect
to the issuance of debentures, notes, and other debt obligations, preferred
stock, common stock, common stock issuable upon exchange or conversion of such
debt obligations or preferred stock which, by their terms, are exchangeable for
or convertible into common stock, warrants or rights to purchase debt
obligations, preferred stock or common stock, and depositary shares representing
fractional interests in preferred stock, which will generate proceeds of up to
$3,000,000,000 (or the equivalent in foreign denominated currency), of the
Corporation, and (ii) a Registration Statement, and any and all amendments
thereto, relating to the offering covered thereby filed pursuant to Rule 462(b)
under the Securities Act, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitutes or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 31st day of March, 1997.
/s/ Southwood J. Morcott
- ---------------------------------
Southwood J. Morcott
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of
CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes
and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of
them acting individually, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign and file
(i) one or more Registration Statements on Form S-3 (or other appropriate form)
for filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
documents in support thereof or supplemental or amendatory thereto, with respect
to the issuance of debentures, notes, and other debt obligations, preferred
stock, common stock, common stock issuable upon exchange or conversion of such
debt obligations or preferred stock which, by their terms, are exchangeable for
or convertible into common stock, warrants or rights to purchase debt
obligations, preferred stock or common stock, and depositary shares representing
fractional interests in preferred stock, which will generate proceeds of up to
$3,000,000,000 (or the equivalent in foreign denominated currency), of the
Corporation, and (ii) a Registration Statement, and any and all amendments
thereto, relating to the offering covered thereby filed pursuant to Rule 462(b)
under the Securities Act, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitutes or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 31st day of March, 1997.
/s/ Charles E. Rice
- ---------------------------------
Charles E. Rice
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of
CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes
and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of
them acting individually, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign and file
(i) one or more Registration Statements on Form S-3 (or other appropriate form)
for filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
documents in support thereof or supplemental or amendatory thereto, with respect
to the issuance of debentures, notes, and other debt obligations, preferred
stock, common stock, common stock issuable upon exchange or conversion of such
debt obligations or preferred stock which, by their terms, are exchangeable for
or convertible into common stock, warrants or rights to purchase debt
obligations, preferred stock or common stock, and depositary shares representing
fractional interests in preferred stock, which will generate proceeds of up to
$3,000,000,000 (or the equivalent in foreign denominated currency), of the
Corporation, and (ii) a Registration Statement, and any and all amendments
thereto, relating to the offering covered thereby filed pursuant to Rule 462(b)
under the Securities Act, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitutes or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 28th day of March, 1997.
/s/ William C. Richardson
- ---------------------------------
William C. Richardson
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned officer or director of
CSX CORPORATION, a Virginia corporation (the "Corporation"), hereby constitutes
and appoints Alan A. Rudnick, Peter J. Shudtz and Gregory R. Weber, and each of
them acting individually, his or her true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign and file
(i) one or more Registration Statements on Form S-3 (or other appropriate form)
for filing with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act"), and any other
documents in support thereof or supplemental or amendatory thereto, with respect
to the issuance of debentures, notes, and other debt obligations, preferred
stock, common stock, common stock issuable upon exchange or conversion of such
debt obligations or preferred stock which, by their terms, are exchangeable for
or convertible into common stock, warrants or rights to purchase debt
obligations, preferred stock or common stock, and depositary shares representing
fractional interests in preferred stock, which will generate proceeds of up to
$3,000,000,000 (or the equivalent in foreign denominated currency), of the
Corporation, and (ii) a Registration Statement, and any and all amendments
thereto, relating to the offering covered thereby filed pursuant to Rule 462(b)
under the Securities Act, with the Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitutes or his substitute, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this 1st day of April, 1997.
/s/ Frank S. Royal
- ---------------------------------
Frank S. Royal
|
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
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CSX CORPORATION
(Exact name of obligor as specified in its charter)
Virginia 62-1051971
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One James Center
Richmond, Virginia 23219
(Address of principal executive offices) (Zip Code)
-------------------------------------
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Debt Securities
(Title of the indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 19th day of May, 1997.
THE CHASE MANHATTAN BANK
By /s/ R. J. Halleran ------------------------------------ R. J. Halleran Second Vice President |
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1996, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS Dollar Amounts
in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin.................................... $ 11,509
Interest-bearing balances............................ 8,457
Securities:..............................................
Held to maturity securities.............................. 3,128
Available for sale securities............................ 40,534
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold................................... 9,222
Securities purchased under agreements to resell...... 422
Loans and lease financing receivables:
Loans and leases, net of unearned income $133,935
Less: Allowance for loan and lease losses 2,789
Less: Allocated transfer risk reserve.... 16
--------
Loans and leases, net of unearned income,
allowance, and reserve............................... 131,130
Trading Assets........................................... 49,876
Premises and fixed assets (including capitalized
leases).............................................. 2,877
Other real estate owned.................................. 290
Investments in unconsolidated subsidiaries and
associated companies................................. 124
Customer's liability to this bank on acceptances
outstanding.......................................... 2,313
Intangible assets........................................ 1,316
Other assets............................................. 11,231
TOTAL ASSETS............................................. $272,429
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LIABILITIES
Deposits
In domestic offices................................. $87,006
Noninterest-bearing.........................$35,783
Interest-bearing............................ 51,223
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's........................................... 73,206
Noninterest-bearing.........................$ 4,347
Interest-bearing.............................68,859
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased............................. 14,980
Securities sold under agreements to repurchase...... 10,125
Demand notes issued to the U.S. Treasury............... 1,867
Trading liabilities.................................... 34,783
Other Borrowed money:
With a remaining maturity of one year or less....... 14,639
With a remaining maturity of more than one year..... 425
Mortgage indebtedness and obligations under capitalized
leases.............................................. 40
Bank's liability on acceptances executed and outstanding 2,267
Subordinated notes and debentures...................... 5,471
Other liabilities...................................... 11,343
TOTAL LIABILITIES...................................... 256,152
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Limited-Life Preferred stock and related surplus....... 550
EQUITY CAPITAL
Common stock........................................... 1,251
Surplus................................................ 10,243
Undivided profits and capital reserves................. 4,526
Net unrealized holding gains (Losses)
on available-for-sale securities....................... (309)
Cumulative foreign currency translation adjustments.... 16
TOTAL EQUITY CAPITAL................................... 15,727
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL............................ $272,429
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I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY ) EDWARD D. MILLER )DIRECTORS THOMAS G. LABRECQUE ) |