Exhibit
1.1
EXECUTION
VERSION
CSX
CORPORATION
$300,000,000
5.600% Notes Due 2017
$700,000,000
6.150% Notes Due 2037
UNDERWRITING
AGREEMENT
Dated:
April 20, 2007
CSX
CORPORATION
$300,000,000
5.600% Notes Due 2017
$700,000,000
6.150% Notes Due 2037
UNDERWRITING
AGREEMENT
April
20,
2007
Citigroup
Global Markets Inc.
J.P.
Morgan Securities Inc.
Morgan
Stanley & Co. Incorporated
As
Representatives of the Underwriters
c/o
Citigroup Global Markets Inc.
388
Greenwich Street
New
York,
New York 10013
J.P.
Morgan Securities Inc.
270
Park
Avenue
New
York,
New York 10017
Morgan
Stanley & Co. Incorporated
1585
Broadway
New
York,
New York 10036
Ladies
and Gentlemen:
CSX
CORPORATION, a Virginia corporation (the “
Company
”), proposes to issue
and sell to the parties named in Schedule II hereto (the “
Underwriters
”),
for whom you are acting as representatives (the “
Representatives
”),
$300,000,000 principal amount of its 5.600% Notes due 2017 (the “
Notes
due 2017”) and $700,000,000 principal amount of its 6.150% Notes due 2037 (the
“Notes due 2037” and, together with the Notes due 2017, the
“Notes”). The Notes are to be issued under an indenture (the
“
Indenture
”) dated as of August 1, 1990, between the Company and The Bank
of New York, successor to JPMorgan Chase Bank, N.A., formerly The Chase
Manhattan Bank, as trustee (the “
Trustee
”), as supplemented and amended
by the First Supplemental Indenture dated as of June 15, 1991, the Second
Supplemental Indenture dated as of May 6, 1997, the Third Supplemental Indenture
dated as of April 22, 1998, the Fourth Supplemental Indenture dated as of
October 30, 2001, the Fifth Supplemental Indenture dated as of October 27,
2003, the Sixth Supplemental Indenture dated as of September 23, 2004 and
the Seventh Supplemental Indenture dated as of the Closing Date (as defined
in
Section 3 hereof).
In
connection with the sale of the Notes, the Company has prepared and filed with
the Securities and Exchange Commission (the “
Commission
”) a registration
statement on Form S-3ASR (Registration No. 333-140732) for the registration
of
debt securities, including the Notes, trust preferred securities (and related
guarantee and agreement as to expenses and liabilities), common stock, preferred
stock, depositary shares and securities warrants, under the Securities Act
of
1933, as amended (the “
Securities Act
”). Any reference herein
to the Registration Statement, the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or
the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act (as defined in Section 1(b) hereof)
after the Effective Date of the Registration Statement or the issue date of
the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case
may be, deemed to be incorporated therein by reference. The Company
hereby confirms that it has authorized the use of the Base Prospectus, any
Preliminary Prospectus and the Final Prospectus, and any amendment or supplement
thereto, in connection with the offer and sale of the Notes by the
Underwriters. Certain terms used herein are defined in Section 18
hereof.
1.
Representations
and Warranties
. The Company represents and warrants to, and
agrees with, each Underwriter as set forth below in this Section
1. Any reference to persons acting on behalf of the Company does not
include any of the Underwriters, with respect to whom the Company makes no
representation.
(a)
The
Company meets the requirements for use of Form S-3ASR under the Securities
Act
and has prepared and filed with the Commission an automatic shelf registration
statement as defined in Rule 405, on Form S-3ASR, including a related Base
Prospectus, for registration under the Securities Act of the offering and
sale
of the Notes. Such Registration Statement, including any amendments
thereto filed prior to the Applicable Time, has become effective. The
Company may have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more preliminary
prospectus supplements relating to the Notes, each of which has previously
been
electronically furnished to you. The Company will file with the
Commission a final prospectus supplement relating to the Notes in accordance
with Rule 424(b). As filed, such final prospectus supplement shall
contain all information required by the Securities Act and the rules thereunder,
and, except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished
to you
prior to the Applicable Time or, to the extent not completed at the Applicable
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary Prospectus)
as
the Company has advised you, prior to the Applicable Time, will be included
or
made therein. The Registration Statement, at the Applicable Time,
meets the requirements set forth in Rule 415(a)(1)(x).
(b)
On
the
Effective Date, the Registration Statement did, and the Final Prospectus (and
any supplement thereto), as of its date and on the Closing Date, will, comply
in
all material respects with the requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the “
Exchange Act
”) and the
Trust Indenture Act of 1939, as amended (the “
TIA
”), and the rules and
regulations of the Commission promulgated thereunder. On the
Effective Date, the Registration Statement did not, and will not, contain an
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not
misleading. On the Effective Date and on the Closing Date, the
Indenture did or will comply in all material respects with the applicable
requirements of the TIA and the rules thereunder. On the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue statement
of
a material fact or omit 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;
provided
,
however
, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form
T-1)
under the TIA of the Trustee or (ii) the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or
the
Final Prospectus (or any supplement thereto), it being understood and agreed
that the only such information furnished by or on behalf of any Underwriters
consists of the information described as such in Section 7 hereof.
(c)
As
of the
Applicable Time, (i) the Disclosure Package and (ii) each electronic roadshow
when taken together as a whole with the Disclosure Package, do not contain
any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package based upon
and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section
7
hereof.
(d)
(i)
At
the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3)
of
the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange
Act
or form of prospectus), (iii) at the time the Company or any person acting
on
its behalf (within the meaning, for this clause only, of Rule 163(c)) made
any
offer relating to the Notes in reliance on the exemption in Rule 163, and (iv)
at the Applicable Time (with such date being used as the
determination date for purposes of this clause (iv)), the Company was or is
(as
the case may be) a “well-known seasoned issuer” as defined in Rule
405. The Company agrees to pay the fees required by the Commission
relating to the Notes within the time required by Rule 456(b)(1) without regard
to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r).
(e)
(i)
At
the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a
bona fide
offer (within
the meaning of Rule 164(h)(2)) of the Notes and (ii) as of the Applicable Time
(with such date being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule
405), without taking account of any determination by the Commission pursuant
to
Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.
(f)
Each
Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 4(I)(c) hereto does not include any information that
conflicts with the information contained in the Registration Statement,
including any document incorporated therein and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions from any Issuer
Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such
information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 7 hereof.
(g)
Since
the
respective dates as of which information is given in the Registration Statement,
the Disclosure Package and the Final Prospectus, except as may otherwise be
stated therein or contemplated thereby, there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
or
properties of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business.
(h)
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 Notes
(other than any stabilization done by the Underwriters, as to which the Company
makes no representation).
(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
information, if any, provided by the Company pursuant to Section 4(I)(g)
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.
2.
Purchase
and Sale
. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees
to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 99.167% of the
principal amount thereof, the principal amount of the Notes due 2017, plus
accrued interest, if any, from April 25, 2007, set forth opposite such
Underwriter’s name in Schedule II hereto.
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter,
and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 99.028% of the principal amount thereof, the
principal amount of the Notes due 2037, plus accrued interest, if any, from
April 25, 2007, set forth opposite such Underwriter’s name in Schedule II
hereto.
3.
Delivery
and Payment
. Delivery of and payment for the Notes shall be made
at 10:00 AM, New York City time, on April 25, 2007, or such later date (not
later than seven full Business Days thereafter) as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment being herein called the “
Closing
Date
”). Delivery of the Notes shall be made to the
Representatives for the respective accounts of the Underwriters against payment
by the Underwriters through the Representatives 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 Representatives.
Delivery
of any Notes to be issued in definitive certificated form shall be made on
the
Closing Date at such location, and in such names and denominations, as the
Representatives shall designate at least one Business Day in advance of the
Closing Date. The Company agrees to have the Notes available for
inspection, checking and packaging by the Representatives in New York, New
York,
not later than 1:00 PM on the Business Day prior to the Closing
Date. The closing for the purchase and sale of the Notes shall occur
at the office of Shearman & Sterling LLP, 599 Lexington Avenue, New York,
New York 10022 (“
Counsel for the Underwriters
”) or such other place as
the parties hereto shall agree.
The
Notes
due 2017 will be issued in the form of one fully registered global Note in
the
denomination of $300,000,000 and the Notes due 2037 will be issued in the form
of one fully registered global Note in the denomination of $700,000,000, each
of
which will be deposited with, or in accordance with the instructions of, The
Depository Trust Company, New York, New York (“DTC”) and registered in the name
of DTC’s nominee. Except as provided in the Indenture, beneficial
owners of the Notes will not have the right to have the Notes registered in
their names, will not receive or be entitled to receive physical delivery of
such Notes, and will not be considered the owners or holders thereof under
the
Indenture.
4.
Agreements
. (I)
The Company agrees with each Underwriter that:
(a)
The
Company will furnish to each Underwriter and to Counsel for the Underwriters,
without charge, during the period referred to in paragraph (e) below, as many
copies of each of the Preliminary Prospectus, any Issuer Free Writing Prospectus
and any amendments and supplements thereto (to be delivered electronically)
and
the Final Prospectus, as it may reasonably request. The Company will
pay the expenses of printing or other production of all documents relating
to
the offering.
(b)
Prior
to
the termination of the offering of the Notes, the Company will not file any
amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the
Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object. The Company will promptly advise the Representatives (i) when
the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of the offering of the Notes, any amendment to the Registration
Statement shall have been filed or become effective, (iii) of any request by
the
Commission or its staff for any amendment of the Registration Statement, or
any
Rule 462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the institution or threatening
of
any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or the occurrence of
any
such suspension or objection to the use of the Registration Statement and,
upon
such issuance, occurrence or notice of objection, to obtain as soon as possible
the withdrawal of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration Statement
or
a new registration statement and using its best efforts to have such amendment
or new registration statement declared effective as soon s
practicable.
(c)
To
prepare a final term sheet, in the form of Schedule I hereto, containing solely
a description of final terms of the Notes and the offering thereof, in a form
approved by you and to file such term sheet pursuant to Rule 433(d) within
the
time required by such Rule.
(d)
If,
at
any time prior to the filing of the Final Prospectus pursuant to
Rule 424(b), any event occurs as a result of which the Disclosure Package
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
circumstances under which they were made at such time not misleading, the
Company will (i) notify promptly the Representatives so that any use of the
Disclosure Package may cease until it is amended or supplemented; (ii) amend
or
supplement the Disclosure Package to correct such statement or omission; and
(iii) supply any amendment or supplement to you in such quantities as you may
reasonably request.
(e)
If
at any
time prior to the earlier of (i) completion of the sale of the Notes by the
Underwriters (as determined by the Representatives) or (ii) six months from
the
date hereof, any event occurs as a result of which the Final Prospectus, as
then
amended or supplemented, would include 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,
or if
it should be necessary to amend or supplement the Final Prospectus (including
any document incorporated by reference therein which was filed under the
Exchange Act) to comply with the Exchange Act or the rules thereunder or other
applicable law, including in connection with the use or delivery of the Final
Prospectus, the Company will promptly notify the Representatives of the same
and, subject to the requirements of paragraph (b) of this Section 4, will
prepare and provide to the Representatives pursuant to paragraph (a) of this
Section 4 an amendment or supplement which will correct such statement or
omission or effect such compliance and, if such an amendment or supplement
is
required to be filed under the Exchange Act and is to be incorporated by
reference in the Final Prospectus, will file such amendment or supplement with
the Commission. The Representatives will promptly advise the Company,
in writing, of the completion of the initial distribution of the
Notes.
(f)
The
Company will, during the period when the Final Prospectus is required to be
delivered under the Securities Act and during 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 Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act.
(g)
The
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 under the Securities Act) covering a twelve-month period beginning not
later
than the first day of the Company’s fiscal quarter next following the “effective
date” (as defined in such Rule 158) of the Registration
Statement.
(h)
The
Company will cooperate with the Representatives and use its reasonable best
efforts to permit the Notes to be eligible for clearance and settlement through
DTC.
(i)
The
Company agrees that, unless it has obtained the prior written consent of the
Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has obtained the prior written consent of the
Company, it has not made and will not make any offer relating to the Notes
that
would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a “free writing prospectus” (as defined in Rule 405) required to be
filed by the Company with the Commission or retained by the Company under
Rule 433, other than the information contained in the final term sheet
prepared and filed pursuant to Section 4(I)(c) hereto; provided that the prior
written consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in Schedule III
hereto. Any such free writing prospectus consented to by the
Representatives or the Company is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company agrees that (x) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
(II) Each
Underwriter, on behalf of itself and each of its affiliates that participates
in
the initial distribution of the Notes, severally represents to and agrees with
the Company that it and each such affiliate:
(a)
in
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a Relevant Member State), with
effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the Relevant Implementation Date),
has not made and will not make an offer of Notes to the public in that Relevant
Member State prior to the publication of a prospectus in relation to the Notes
which has been approved by the competent authority in that Relevant Member
State
or, where appropriate, approved in another Relevant Member State and notified
to
the competent authority in that Relevant Member State, all in accordance with
the Prospectus Directive, except that it may, with effect from and including
the
Relevant Implementation Date, make an offer of Notes to the public in that
Relevant Member State at any time,
(i)
to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities;
(ii)
to
any
legal entity which has two or more of (1) an average of at least 250 employees
during its last financial year; (2) a total balance sheet of more than
€43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown
in its last annual or consolidated accounts;
(iii)
to
fewer
than 100 natural or legal persons (other than qualified investors as defined
in
the Prospectus Directive) subject to obtaining the prior consent of the
Representatives for any such offer; or
(iv)
in
any
other circumstances which do not require the publication by the Company of
a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this provision, the expression an “offer of Notes to the public” in
relation to any Notes in any Relevant Member State means the communication
in
any form and by any means of sufficient information on the terms of the offer
and the Notes to be offered so as to enable an investor to decide to purchase
or
subscribe the Notes, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State, and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State;
(b)
has
only
communicated or caused to be communicated and will only communicate or cause
to
be communicated an invitation or inducement to engage in investment activity
(within the meaning of section 21 of the United Kingdom Financial Services
and
Markets Act 2000, or “FSMA”) to persons who have professional experience in
matters relating to investments falling within Article 19(5) of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005 or in
circumstances in which section 21 of FSMA does not apply to the Company; and
has
complied with, and will comply with all applicable provisions of FSMA with
respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom; and
(c)
will
not
offer or sell any of the Notes directly or indirectly in Japan or to, or for
the
benefit of any Japanese person or to others, for re-offering or re-sale directly
or indirectly in Japan or to any Japanese person, except in each case pursuant
to an exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law of Japan and any other
applicable laws and regulations of Japan. For purposes of this paragraph,
"Japanese person" means any person resident in Japan, including any corporation
or other entity organized under the laws of Japan.
(III) Mitsubishi
UFJ Securities International plc, on behalf of itself and each of its affiliates
that participates in the initial distribution of the Notes, represents to and
agrees with the Company that it and each such affiliate has not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer or
sell
any Notes in the United States.
5.
Conditions
to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Notes shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein
at
the date and time that this Agreement is executed and delivered by the parties
hereto, at the Applicable Time, and at the Closing Date and to the accuracy
of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a)
The
Final
Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); the final term sheet contemplated
by
Section 4(I)(c) hereto, and any other material required to be filed by the
Company pursuant to Rule 433(d) under the Securities Act, shall have been filed
with the Commission within the applicable time periods prescribed for such
filings by Rule 433; and no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened.
(b)
The
Company shall have furnished to the Underwriters the opinion of the Senior
Vice
President – Law and Public Affairs, the General Counsel or an Assistant General
Counsel of the Company, dated the 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 Disclosure Package and the Final Prospectus; 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 or formed, as the case may be, and is validly existing as a
corporation or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its incorporation or formation, as the
case may be, has organizational power and authority to own, lease and operate
its properties and conduct its business as described in the Disclosure Package
and the Final Prospectus; and, to the best of such counsel’s knowledge, is duly
qualified as a foreign corporation or limited liability company, as the case
may
be, 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 or membership interests, as the case may be, 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, except as would not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise;
(iii)
This
Agreement and the Indenture have been duly authorized, executed and delivered
by
the Company;
(iv)
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 for a filing of any Preliminary Prospectus or the
Final Prospectus under Rule 424(b) of the Securities Act and such as may be
required under state securities laws;
(v)
The
execution, delivery and performance of this Agreement and the issuance and
sale
of the Notes 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, by-laws or operating
agreement, as the case may be, of the Company or any Significant
Subsidiary.
(vi)
The
Company has full power and authority to authorize, issue and sell the Notes
as
contemplated by this Agreement; and
(vii)
Each
document filed pursuant to the Exchange Act and incorporated by reference in
the
Disclosure Package and the Final Prospectus complied when filed as to form
in
all material respects with the Exchange Act and the rules and regulations
promulgated thereunder.
In
addition, such counsel shall state that he or she has, or persons under his
or
her supervision have, participated in conferences with officers and other
representatives of the Company, representatives of Ernst & Young LLP,
independent auditors for the Company, the Representatives and Counsel for the
Underwriters, at which the contents of the Registration Statement and any
Preliminary Prospectus, the Disclosure Package or the Final Prospectus 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 Registration Statement, the
Disclosure Package or any Preliminary Prospectus or the Final Prospectus or
any
amendment thereof or supplement thereto, no facts have come to the attention
of
such counsel that would lead such counsel to believe (A) that the Registration
Statement (other than the historical, pro forma, projected or other financial
statements, information and data and statistical information and data included
or incorporated by reference therein or omitted therefrom, and Form T-1, in
each
case as to which no opinion need be given), at the Applicable Time, contained
any untrue statement of a material fact, or omitted to state a material fact
necessary in order to make the statements therein not misleading or (B) that
(i)
the Disclosure Package, as of the Applicable Time, and (ii) the Final
Prospectus, as amended or supplemented as of its date or as of the Closing
Date
(in each case, other than the historical, pro forma, projected or other
financial statements, information and data and statistical information and
data
included or incorporated by reference therein or omitted therefrom, in each
case
as to which no opinion need be given), includes or will include any untrue
statement of a material fact or omits or will omit 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 5(b) to the Final
Prospectus shall be deemed to include any amendment or supplement thereto at
the
Closing Date.
(c)
The
Company shall have furnished to the Underwriters the opinion of Cravath, Swaine
& Moore LLP, counsel for the Company, dated the Closing Date, to the effect
that:
(i)
The
Indenture has been duly authorized, executed and delivered by the Company;
the
Indenture 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; the Notes have been duly authorized, executed,
issued and delivered by the Company; the Notes, when authenticated in the manner
provided in the Indenture, will 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 opinions,
such counsel may assume that the Indenture has been duly authorized, executed
and delivered, and the Notes have been duly authenticated, by the Trustee);
and
the Notes conform to the description thereof contained in the Disclosure Package
and the Final Prospectus;
(ii)
This
Agreement has been duly authorized, executed and delivered by the
Company;
(iii)
The
Indenture is qualified under the TIA;
(iv)
The
Registration Statement is effective under the Securities Act, any Preliminary
Prospectus and the Final Prospectus were filed with the Commission pursuant
to
the subparagraph of Rule 424(b) specified in such opinion on the date specified
therein, any other material required to be filed by the Company pursuant to
Rule
433(d) under the Securities Act was filed, and, to the best of such counsel’s
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Securities Act nor proceedings therefor
initiated or threatened by the Commission;
(v)
At
the
time the Registration Statement became effective, the Registration Statement
(other than the historical, pro forma, projected or other financial statements,
information and data and statistical information and data included or
incorporated by reference therein or omitted therefrom and Form T-1, in each
case as to which no opinion need be rendered) complied as to form in all
material respects with the requirements of the Securities Act and the rules
and
regulations promulgated thereunder;
(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; and
(vii)
The
statements in the Disclosure Package and the Final Prospectus under the captions
“Description of Debt Securities” and “Description of Notes”, insofar as they
purport to summarize certain provisions of the Notes and the Indenture, are
accurate summaries of such provisions.
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 LLP, independent auditors for the Company, the Representatives and
Counsel for the Underwriters at which the contents of the Registration
Statement, Disclosure Package and the Final Prospectus 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 Registration Statement, Disclosure Package and
the
Final Prospectus or any amendment thereof or supplement thereto (other than
to
the extent addressed in the last clause of paragraph (b)(i) and
paragraph (b)(vii) in this Section 5), and did not participate in the
preparation of the documents incorporated by reference in the Registration
Statement or any Preliminary Prospectus and the Final Prospectus, no facts
have
come to the attention of such counsel that would lead such counsel to believe
(A) that the Registration Statement (other than the historical, pro forma,
projected or other financial statements, information and data and statistical
information and data included or incorporated by reference therein or omitted
therefrom, and Form T-1, in each case as to which no opinion need be given),
at
the Applicable Time, contained any untrue statement of a material fact, or
omitted to state a material fact necessary in order to make the statements
therein not misleading or (B) that (i) the Disclosure Package, as of the
Applicable Time, or (ii) the Final Prospectus as amended or supplemented as
of
its date or as of the Closing Date (in each case, other than the historical,
pro
forma, projected or other financial statements, information and data and
statistical information and data included or incorporated by reference therein
or omitted therefrom, in each case as to which no opinion need be given)
includes or will include any untrue statement of a material fact or omits or
will omit 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, Cravath, Swaine & Moore LLP may rely (A) as to
matters governed by Virginia law upon the opinion of the Senior Vice President
–
Law and Public Affairs, General Counsel or Assistant General Counsel of the
Company 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 5(b) to the Final Prospectus shall be deemed to include any
amendment or supplement thereto at the Closing Date.
(d)
The
Representatives shall have received from Counsel for the Underwriters such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Notes, the Registration Statement, the Disclosure Package and the
Final Prospectus (as amended or supplemented at the 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 Underwriters may rely as to all matters governed by Virginia
law
on the opinion of the Senior Vice President – Law and Public Affairs, General
Counsel or Assistant General Counsel of the Company, referred to
above.
(e)
The
Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board, President and Chief Executive
Officer, any Vice President or the Assistant Vice President – Capital Markets
and another person who is the principal financial or accounting officer of
the
Company, or, in their absence, other proper officers of the Company satisfactory
to the Representatives, dated the Closing Date, to the effect that the signers
of such certificate have examined the Registration Statement, the Disclosure
Package, the Final Prospectus, any amendment or supplement thereto 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 Closing Date with the same
effect as if made on and as of such 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 the Closing Date; and
(ii)
since
the
date of the most recent financial statements incorporated by reference in the
Disclosure Package and the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or properties
of the Company and its subsidiaries considered as one enterprise, whether or
not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated by the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto after the date hereof) or
as
described in such certificate.
(f)
At
the
Applicable Time and at the Closing Date, Ernst & Young LLP shall have
furnished to the Representatives letters, dated respectively as of the
Applicable Time and as of the Closing Date, in form and substance satisfactory
to the Representatives, confirming that they are independent accountants within
the meaning of the Securities Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission 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 Registration
Statement, Preliminary Prospectus and Final Prospectus.
(g)
Subsequent
to the Applicable Time or, if earlier, the dates as of which information is
given in the Registration Statement (exclusive of any amendment thereof) and
the
Final Prospectus (exclusive of any supplement thereto), there shall not have
been (i) any change or decrease specified in the letters referred to in
paragraph (f) of this Section 5 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 Representatives, so
material and adverse as to make it impractical or inadvisable to market the
Notes as contemplated by the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereof or thereto after the date
hereof).
(h)
Subsequent
to the Applicable Time, there shall not have been any decrease in the rating
of
any of the Company’s debt securities by Moody’s Investors Service, Inc. or
Standard & Poor’s Ratings Group 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.
(i)
Prior
to
the Closing Date, the Company shall furnish to the Representatives such
conformed copies of such opinions, certificates, letters and documents as the
Representatives may reasonably request.
If
any of
the conditions specified in this Section 5 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 Representatives and Counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder with respect to the Notes may be
canceled at, or at any time prior to, the Closing Date by the
Representatives. 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 5 will be delivered at the
office of Counsel for the Underwriters, at 599 Lexington Avenue, New York,
New
York 10022, on the Closing Date.
6.
Reimbursement
of Expenses
. If the sale of the Notes provided for herein is not
consummated because of cancellation by the Representatives pursuant to
Section 5 hereof, because of any termination pursuant to Section 9
hereof or because of any refusal, inability or failure on the part of the
Company to perform any material agreement herein or comply with any material
provision hereof other than by reason of a default by any of the Underwriters
in
payment for the Notes on the Closing Date, the Company will reimburse the
Underwriters severally upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of Counsel for the Underwriters)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Notes.
7.
Indemnification
and Contribution
. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees,
affiliates and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims, damages
or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or in the Base Prospectus, any
Preliminary Prospectus or any other preliminary prospectus supplement relating
to the Notes, the Final Prospectus, any Issuer Free Writing Prospectus or the
information contained in the final term sheet required to be prepared and filed
pursuant to Section 4(I)(c) hereto, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action
as
such expenses are incurred;
provided
,
however
, that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement
or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriters through the Representatives
specifically for inclusion therein. This indemnity agreement will be
in addition to any liability the Company may otherwise have.
(b)
Each
Underwriter severally and not jointly 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 Underwriter, but only with reference to information relating to such
Underwriter furnished in writing to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company and each Underwriter acknowledge that the
statements set forth in the fourth paragraph, sixth paragraph, thirteenth
paragraph, fourteenth paragraph and fifteenth paragraph of text under the
heading “Underwriting” in any Preliminary Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in any Preliminary Prospectus or the Final Prospectus
(or in any amendment or supplement thereto). The Company and
Mitsubishi UFJ Securities International plc acknowledge that the statements
set
forth in the eleventh paragraph of text under the heading “Underwriting” in any
Preliminary Prospectus and the Final Prospectus constitute information furnished
in writing by or on behalf of Mitsubishi UFJ Securities International plc for
inclusion in any Preliminary Prospectus or the Final Prospectus (or in any
amendment or supplement thereto).
(c)
Promptly
after receipt by an indemnified party under this Section 7 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 7,
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 unless and to the extent it did
not
otherwise learn of such action and such failure results in the forfeiture by
the
indemnifying party of substantial rights and defenses and (ii) will not, in
any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or
(b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party
or
parties except as set forth below);
provided
,
however
, that such
counsel shall be reasonably satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel);
however, the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel only if (i) the use of counsel chosen by
the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
upon advice of counsel that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle 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
(i) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party. An
indemnifying party shall not be liable under this Section 7 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.
(d)
If
the
indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable
to
or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters 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 Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and by the Underwriters from the offering of the
Notes. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted
in
such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to be
equal
to the total purchase discounts and commissions received by the Underwriters
from the Company in connection with the purchase of the Notes hereunder, in
each
case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to whether any alleged untrue statement
or omission relates to information provided by the Company or the Underwriters,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
purchase obligations and not joint. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act and
each director, officer, employee and agent of an Underwriter shall have the
same
rights to contribution as such Underwriter, 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 and each officer and 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). Notwithstanding the provisions of this paragraph (d), in no case
shall any Underwriter (except as may be provided in any agreement among the
Underwriters relating to the offering of the Notes) be responsible for any
amount in excess of the purchase discount or commission applicable to the Notes
purchased by such Underwriter hereunder, in each case as set forth on the cover
page of the Final Prospectus.
8.
Default
by an Underwriter
. If any one or more Underwriters shall fail to
purchase and pay for any of the Notes agreed to be purchased by such Underwriter
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Notes set forth opposite
their names in Schedule II hereto bears to the aggregate principal amount of
Notes set forth opposite the names of all the remaining Underwriters) the Notes
which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that if the aggregate principal amount of Notes
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Notes set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Notes, and
if
such non-defaulting Underwriters do not purchase all the Notes within 36 hours
of such default, this Agreement will terminate without liability to any
non-defaulting Underwriter or the Company except as otherwise provided in
Section 10. In the event of a default by any Underwriter as set forth
in this Section 8, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
the
required changes in the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company or to any non-defaulting Underwriter for damages occasioned by its
default hereunder.
9.
Termination
. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to delivery of and payment
for the applicable Notes, if prior to such time (i) there shall have occurred
any change, or any development involving a prospective change, in or affecting
particularly the business or properties of the Company or its subsidiaries
which, in the judgment of the Representatives, materially impairs the investment
quality of the Notes, (ii) any downgrading in the rating of any debt securities
of the Company by any “nationally recognized statistical rating organization”
(as defined for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating), (iii) trading in any of the Company’s securities
shall have been suspended by the Commission or the New York Stock Exchange
or
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited or minimum prices shall have been established
on
such exchange, (iv) a banking moratorium shall have been declared either by
federal or New York State authorities or (v) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of
a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the reasonable judgment of the
Representatives, impracticable or inadvisable to proceed with the offering
or
delivery of the Notes as contemplated by any Preliminary Prospectus or the
Final
Prospectus (exclusive of any amendment or supplement thereof or thereto after
the date hereof).
10.
Representations
and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company
or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Underwriters or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Notes. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
11.
Fees,
Expenses
. The Company covenants and agrees with the
Representatives that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company’s
counsel and accountants in connection with the issue of the Notes and all other
expenses in connection with the preparation and printing of the Final Prospectus
and any amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters; (ii) the cost of printing or other
production of all documents relating to the offering, purchase, sale and
delivery of the Notes as provided in Section 4(I)(a); (iii) any fees
charged by securities rating services for rating the Notes; (iv) the cost of
preparing the Notes; (v) the fees and expenses of the Trustee and any agent
of
the Trustee and the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Notes; (vi) any fees charged by DTC;
(vii)
all expenses in connection with the qualification of the Notes for offering
and
sale under state securities laws, including the fees and disbursements of
Counsel for the Underwriters in connection with such qualification and in
connection with Blue Sky and Legal Investment Survey; and (viii) all other
costs
and expenses incident to the performance of its obligations hereunder which
are
not otherwise specifically provided for in this Section 11. It is
understood, however, that except as provided in Sections 6 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees,
disbursements and expenses of their counsel and any marketing expenses connected
with any offers they may make.
12.
Notices
. All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representatives, will be mailed, delivered or telefaxed and
confirmed to them, care of (i) Citigroup Global Markets Inc., 388 Greenwich
Street, New York, New York 10013, attention: General
Counsel, (ii) J.P. Morgan Securities Inc., 270 Park Avenue, New
York, New York 10017, telefax number (212) 834-6081 and (iii) Morgan
Stanley & Co. Incorporated, 1585 Broadway, 29
th
Floor,
New York,
New York 10036, attention: Investment Banking Division; or, if sent to the
Company, will be mailed, delivered or telefaxed and confirmed to it at CSX
Corporation, 500 Water Street, 2
nd
Floor,
Jacksonville, Florida 32202, attention: David H. Baggs, Assistant
Vice President – Capital Markets, telefax number (904) 366-5176.
13.
Successors
. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and controlling
persons referred to in Section 7 hereof, and no other person will have any
right
or obligation hereunder.
14.
Applicable
Law
. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
15.
No
Fiduciary Duty
. The Company hereby acknowledges that (a) the
purchase and sale of the Securities pursuant to this Agreement is an
arm’s-length commercial transaction between the Company, on the one hand, and
the Underwriters and any affiliate through which it may be acting, on the other,
(b) the Underwriters are acting as principal and not as an agent or fiduciary
of
the Company and (c) the Company’s engagement of the Underwriters in connection
with the offering and the process leading up to the offering is as independent
contractors and not in any other capacity. Furthermore, the Company
agrees that it is solely responsible for making its own judgments in connection
with the offering (irrespective of whether any of the Underwriters has advised
or is currently advising the Company on related or other
matters). The Company agrees that it will not claim that the
Underwriters have rendered advisory services of any nature or respect, or owe
an
agency, fiduciary or similar duty to the Company, in connection with such
transaction or the process leading thereto.
16.
Counterparts
. This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original, but all such counterparts will together constitute
one
and the same instrument.
17.
Headings
. The
section headings are for convenience only and shall not affect the construction
hereof.
18.
Definitions
. The
terms which follow, when used in this Agreement, shall have the meanings
indicated.
“Applicable
Time” shall mean 4.00 PM (Eastern Time) on April 20, 2007 or such other time as
agreed by the Company and the Representatives.
“Base
Prospectus” shall mean the base prospectus referred to in Section 1(a) above
contained in the Registration Statement at the
Applicable Time.
“Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not
a day on which banking institutions in The City of New York, New York are
authorized or obligated by law, executive order or regulation to
close.
“Disclosure
Package” shall mean (i) the Preliminary Prospectus most recently distributed
generally to investors prior to the Applicable Time, (ii) the Issuer
Free Writing Prospectuses, if any, identified in Schedule III hereto, (iii)
the
final term sheet prepared and filed pursuant to Section 4(I)(c) hereto,
identified in Schedule I hereto, if any, and (iv) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing
to
treat as part of the Disclosure Package.
“Effective
Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective.
“Final
Prospectus” shall mean the prospectus supplement relating to the Notes that was
first filed pursuant to Rule 424(b) after the Applicable Time,
together with the Base Prospectus.
“Free
Writing Prospectus” shall mean a free writing prospectus, as defined in Rule
405.
“Issuer
Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary
Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in Section 1(a) above which is used prior to the filing
of the Final Prospectus, together with the Base Prospectus.
“Registration
Statement” shall mean the registration statement referred to in Section 1(a)
above, including exhibits and financial statements and any prospectus supplement
relating to the Notes that is filed with the Commission pursuant to
Rule 424(b) and deemed part of such registration statement pursuant to Rule
430B, as amended on each Effective Date and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended.
“Rule
158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B”, and “Rule 433” refer to such rules under the
Securities Act.
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
Underwriters.
|
Very
truly yours,
|
|
|
|
CSX
CORPORATION
|
|
|
|
|
|
By:
|
/s/
David A. Boor
|
|
|
Name:
David A. Boor
|
|
|
Title:
Vice
President – Tax and
Treasurer
|
|
The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
|
|
|
|
CITIGROUP
GLOBAL MARKETS INC.
|
|
|
|
By:
|
/s/
Brian Bednarski
|
|
|
Name: Brian
Bednarski
|
|
|
Title:
Director
|
|
|
|
|
J.P.
MORGAN SECURITIES INC.
|
|
|
|
By:
|
/s/
Maria Stramek
|
|
|
Name:
Maria Stramek
|
|
|
Title:
Executive
Director
|
|
|
|
|
MORGAN
STANLEY & CO. INCORPORATED
|
|
|
|
By:
|
/s/
Yurij Slyz
|
|
|
Name: Yurij
Slyz
|
|
|
Title:
Vice
President
|
For
themselves and the other Underwriters named in
Schedule
II to the foregoing Agreement
SCHEDULE
I
PRICING
TERM SHEETS
5.600%
Notes due 2017
|
Issuer:
|
CSX
Corporation
|
|
Security:
|
5.600%
Notes due 2017
|
|
Size:
|
$300,000,000
|
|
Maturity
Date:
|
May
1, 2017
|
|
Coupon:
|
5.600%
|
|
Interest
Payment Dates:
|
May
1 and November 1, commencing November 1, 2007
|
|
Price
to Public:
|
99.817%
|
|
Benchmark
Treasury:
|
4.625%
due February 15, 2017
|
|
Benchmark
Treasury Yield:
|
4.674%
|
|
Spread
to Benchmark Treasury:
|
+
95 bp
|
|
Yield:
|
5.624%
|
|
Make-Whole
Call:
|
T+
20 bps
|
|
Expected
Settlement Date:
|
April
25, 2007
|
|
CUSIP:
|
126408
GJ6
|
|
Anticipated
Ratings:
|
Baa2
(Stable) by Moody’s Investors Service, Inc.
BBB
(Stable) by Standard & Poor’s Ratings Services
BBB
(Stable) by Fitch Ratings Ltd.
|
|
Joint
Book-Running Managers:
|
Citigroup
Global Markets Inc.
J.P.
Morgan Securities Inc.
Morgan
Stanley & Co. Incorporated
|
|
Senior
Co-Managers:
|
Barclays
Capital Inc.
Deutsche
Bank Securities Inc.
|
|
Co-Managers
|
Mizuho
Securities USA Inc.
Credit
Suisse Securities (USA) LLC
Mitsubishi
UFJ Securities International plc
Scotia
Capital (USA) Inc.
UBS
Securities
LLC
|
Note:
A
securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time.
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering.
You
may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling Citigroup Global Markets Inc. toll free at 1-877-858-5407,
J.P. Morgan Securities Inc. collect at 212-834-4533 or Morgan Stanley & Co.
Incorporated toll free at 1-866-718-1649.
6.150%
Notes due 2037
|
Issuer:
|
CSX
Corporation
|
|
Security:
|
6.150%
Notes due 2037
|
|
Size:
|
$700,000,000
|
|
Maturity
Date:
|
May
1, 2037
|
|
Coupon:
|
6.150%
|
|
Interest
Payment Dates:
|
May
1 and November 1, commencing November 1, 2007
|
|
Price
to Public:
|
99.903%
|
|
Benchmark
Treasury:
|
4.500%
due February 15, 2036
|
|
Benchmark
Treasury Yield:
|
4.867%
|
|
Spread
to Benchmark Treasury:
|
+
129 bp
|
|
Yield:
|
6.157%
|
|
Make-Whole
Call:
|
T+
25 bps
|
|
Expected
Settlement Date:
|
April
25, 2007
|
|
CUSIP:
|
126408
GK3
|
|
Anticipated
Ratings:
|
Baa2
(Stable) by Moody’s Investors Service, Inc.
BBB
(Stable) by Standard & Poor’s Ratings Services
BBB
(Stable) by Fitch Ratings Ltd.
|
|
Joint
Book-Running Managers:
|
Citigroup
Global Markets Inc.
J.P.
Morgan Securities Inc.
Morgan
Stanley & Co. Incorporated
|
|
Senior
Co-Managers:
|
Barclays
Capital Inc.
Deutsche
Bank Securities Inc.
|
|
Co-Managers
|
Mizuho
Securities USA Inc.
Credit
Suisse Securities (USA) LLC
Mitsubishi
UFJ Securities International plc
Scotia
Capital (USA) Inc.
UBS
Securities LLC
|
Note:
A
securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time.
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering.
You
may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov. Alternatively, the issuer, any underwriter or any dealer
participating in the offering will arrange to send you the prospectus if you
request it by calling Citigroup Global Markets Inc. toll free at 1-877-858-5407,
J.P. Morgan Securities Inc. collect at 212-834-4533 or Morgan Stanley & Co.
Incorporated toll free at 1-866-718-1649.
SCHEDULE
II
$300,000,000
5.600% Notes due 2017
|
|
Principal
Amount of
|
|
|
Notes
due 2017
|
|
Underwriters
|
to
Be Purchased
|
|
Citigroup
Global Markets Inc.
|
74,400,000
|
|
J.P.
Morgan Securities Inc.
|
74,400,000
|
|
Morgan
Stanley & Co. Incorporated
|
74,400,000
|
|
Barclays
Capital Inc.
|
18,900,000
|
|
Deutsche
Bank Securities Inc.
|
18,900,000
|
|
Mizuho
Securities USA Inc.
|
12,000,000
|
|
Credit
Suisse Securities (USA) LLC
|
6,750,000
|
|
Mitsubishi
UFJ Securities International plc
|
6,750,000
|
|
Scotia
Capital (USA) Inc.
|
6,750,000
|
|
UBS
Securities LLC
|
6,750,000
|
|
Total
|
$300,000,000
|
|
|
|
$700,000,000
6.150% Notes due 2037
|
|
Principal
Amount of
|
|
|
Notes
due 2037
|
|
Underwriters
|
to
Be Purchased
|
|
Citigroup
Global Markets Inc.
|
173,600,000
|
|
J.P.
Morgan Securities Inc.
|
173,600,000
|
|
Morgan
Stanley & Co. Incorporated
|
173,600,000
|
|
Barclays
Capital Inc.
|
44,100,000
|
|
Deutsche
Bank Securities Inc.
|
44,100,000
|
|
Mizuho
Securities USA Inc.
|
28,000,000
|
|
Credit
Suisse Securities (USA) LLC
|
15,750,000
|
|
Mitsubishi
UFJ Securities International plc
|
15,750,000
|
|
Scotia
Capital (USA) Inc.
|
15,750,000
|
|
UBS
Securities LLC
|
15,750,000
|
|
Total
|
$700,000,000
|
|
|
|
SCHEDULE
III
Schedule
of Free Writing Prospectuses included in the Disclosure Package
Term
Sheet
Exhibit
4.3
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.
CSX
CORPORATION
$500,000,000
6.150%
NOTES DUE 2037
No.
R-1
CUSIP
No.
126408GK3
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 Bank of New York,
successor to JPMorgan Chase Bank, N.A., formerly known as The Chase Manhattan
Bank, as 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, a Second Supplemental
Indenture dated as of May 6, 1997, a Third Supplemental Indenture dated as
of
April 22, 1998, a Fourth Supplemental Indenture dated as of October 30, 2001,
a
Fifth Supplemental Indenture dated as of October 27, 2003, a Sixth Supplemental
Indenture dated as of September 23, 2004, and a Seventh Supplemental Indenture
dated as of April 25, 2007, 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 initial aggregate principal amount of $500,000,000 (FIVE
HUNDRED MILLION DOLLARS). All Securities of this series need not be issued
at
the same time and such series may be reopened at any time, without the consent
of any Holder, for issuances of additional Securities of this series. Any
such
additional Securities of this series will have the same interest rate, maturity
and other terms as those initially issued. Further Securities of this series
may
also be authenticated and delivered as provided by Sections 304, 305, 306
or 906
of the Indenture. This Security represents an aggregate initial principal
amount
of $500,000,000 (FIVE HUNDRED MILLION 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 CEDE & CO., or its
registered assigns, the principal sum of $500,000,000 (FIVE HUNDRED MILLION
DOLLARS) on May 1, 2037 and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) thereon from April 25, 2007 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 of each year, commencing
November 1, 2007, and at Maturity at the rate of 6.150% 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 or automated quotation system on which the Securities
of
this series may be listed or quoted, and upon such notice as may be required
by
such exchange or system, 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.
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 Depository with respect to the Securities of this series (the “Depository”)
notifies the Company that it is unwilling, unable or ineligible to continue
as
Depository for this Security or if at any time the Depository ceases to be
a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor Depository is not appointed by the Company within
90
days, (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 Securities 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 or at the office of any transfer agent designated by the
Company for that purpose. 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.
Payment
of the principal of and any such interest on this Security will be made at
the
offices of the Trustee as Paying Agent, in the Borough of Manhattan, The
City of
New York, or at such other office or agency of the Company as may be designated
by it for such purpose in the Borough of Manhattan, The City of New York,
in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts by check
mailed to the registered Holders thereof;
provided
,
however
,
that at
the option of the Holder, payment of interest may be made by wire transfer
of
immediately available funds to an account of the Person entitled hereto as
such
account shall be provided to the Security Registrar and shall appear in the
Security Register.
The
Securities shall be redeemable, in whole or in part, at the Company’s option at
any time. The Redemption Price for the Securities to be redeemed shall equal
the
greater of the following amounts, plus, in each case, accrued interest thereon
to the Redemption Date:
|
|
·
|
100%
of the principal amount of such Securities;
or
|
|
|
·
|
As
determined by the Independent Investment Banker (as defined below),
the
sum of the present values of the remaining scheduled payments of
principal
and interest on the Securities (not including any portion of any
payments
of interest accrued from the most recent Interest Payment Date
to which
interest has been paid to the Redemption Date) discounted to the
Redemption Date on a semiannual basis at the Adjusted Treasury
Rate (as
defined below) plus 20 basis
points.
|
The
Redemption Price shall be calculated by the Independent Investment Banker
assuming a 360-day year consisting of twelve 30-day months.
“Adjusted
Treasury Rate” means, with respect to any Redemption Date:
|
|
·
|
the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve
System
and which establishes yields on actively traded U.S. Treasury securities
adjusted to constant maturity under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the
remaining
term of the Securities, yields for the two published maturities
most
closely corresponding to the Comparable Treasury Issue will be
determined
and the Adjusted Treasury Rate will be interpolated or extrapolated
from
such yields on a straight line basis, rounding to the nearest month);
or
|
|
|
·
|
If
such release (or any successor release) is not published during
the week
preceding the calculation date or does not contain such yields,
the rate
per annum equal to the semiannual equivalent yield to maturity
of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury
Issue (expressed as a percentage of its principal amount) equal
to the
Comparable Treasury Price for such Redemption
Date.
|
The
Adjusted Treasury Rate shall be calculated on the third Business Day preceding
the Redemption Date. The Company shall notify the Trustee, in an Officers’
Certificate, of the Redemption Price no later than the second Business Day
preceding the Redemption Date. The Officers’ Certificate shall set forth the
Redemption Price both as an aggregate amount for all the Securities to be
redeemed and as an amount per $1,000.00 in principal amount of the Securities
to
be redeemed, subject to a minimum $2,000.00 denomination as set forth
below.
“Comparable
Treasury Issue” means the U.S. Treasury security selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of
the
Securities to be redeemed that would be utilized, at the time of selection
and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of
such
Securities.
“Comparable
Treasury Price” means, with respect to any Redemption Date, (A) the average of
five Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations,
or
(B) if the Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“Independent
Investment Banker” means Citigroup Global Markets Inc. and its successors, or if
that firm is unwilling or unable to serve in that capacity, an independent
investment and banking institution of national standing appointed by the
Company.
“Reference
Treasury Dealer” means:
|
|
·
|
Citigroup
Global Markets Inc., J.P. Morgan Securities Inc. and Morgan Stanley
&
Co. Incorporated and their successors; provided that, if any ceases
to be
a primary U.S. Government securities dealer in the United States
(“Primary
Treasury Dealer”), the Company will substitute another Primary Treasury
Dealer; and
|
|
|
·
|
Up
to four other Primary Treasury Dealers selected by the
Company.
|
“Reference
Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Independent
Investment Banker, of the bid and asked prices for the Comparable Treasury
Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Independent Investment Banker by such Reference Treasury Dealer
at 5:00 p.m. (New York City time) on the third business day preceding such
Redemption Date.
Notice
of
redemption shall be given as provided in Section 1104 of the Indenture;
provided, that such notice shall not be required to include the Redemption
Price
but shall instead include the manner of calculation of the Redemption Price.
If
the Company elects to partially redeem the Securities, the Trustee will select
in a fair and appropriate manner the Securities to be redeemed.
Unless
the Company defaults in payment of the Redemption Price, on and after the
Redemption Date interest will cease to accrue on the Securities or portions
thereof called for redemption.
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.
If
a
Change of Control Repurchase Event occurs, unless the Company have exercised
the
Company’s right to redeem the “Securities” as described above, the Company will
be required to make an offer to each holder of the “Securities” to repurchase
all or any part (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of that holder’s “Securities” at a repurchase price in cash equal to
101% of the aggregate principal amount of the “Securities” repurchased plus any
accrued and unpaid interest on the “Securities” repurchased to, but not
including, the date of repurchase. Within 30 days following any Change of
Control Repurchase Event or, at the Company’s option, prior to any Change of
Control, but after the public announcement of the Change of Control, the
Control
will mail a notice to each holder, with a copy to the Trustee, describing
the
transaction or transactions that constitute or may constitute the Change
of
Control Repurchase Event and offering to repurchase the “Securities” on the
payment date specified in the notice, which date will be no earlier than
30 days
and no later than 60 days from the date such notice is mailed. The notice
shall,
if mailed prior to the date of consummation of the Change of Control, state
that
the offer to purchase is conditioned on a Change of Control Repurchase Event
occurring on or prior to the payment date specified in the notice. The Company
will comply with the requirements of Rule 14e-1 under the Exchange Act, and
any
other securities laws and regulations thereunder to the extent those laws
and
regulations are applicable in connection with the repurchase of the “Securities”
as a result of a Change of Control Repurchase Event. To the extent that the
provisions of any securities laws or regulations conflict with the Change
of
Control Repurchase Event provisions of the “Securities”, the Company will comply
with the applicable securities laws and regulations and will not be deemed
to
have breached the Company’s obligations under the Change of Control Repurchase
Event provisions of the “Securities” by virtue of such conflict.
On
the
repurchase date following a Change of Control Repurchase Event, the Company
will, to the extent lawful:
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(1)
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accept
for payment all the “Securities” or portions of the “Securities” properly
tendered pursuant to the Company’s
offer;
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(2)
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deposit
with the paying agent an amount equal to the aggregate purchase
price in
respect of all the “Securities” or portions of the “Securities” properly
tendered; and
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(3)
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deliver
or cause to be delivered to the Trustee the “Securities” properly
accepted, together with an officers’ certificate stating the aggregate
principal amount of the “Securities” being purchased by the
Company.
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The
paying agent will promptly mail to each holder of the “Securities” properly
tendered the purchase price for the “Securities”, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book-entry) to each
holder
a new note equal in principal amount to any unpurchased portion of any
“Securities” surrendered; provided that each new note will be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess
thereof.
The
Company will not be required to make an offer to repurchase the “Securities”
upon a Change of Control Repurchase Event if a third party makes such an
offer
in the manner, at the times and otherwise in compliance with the requirements
for an offer made by the Company and such third party purchases all the
“Securities” properly tendered and not withdrawn under its offer.
For
purposes of the foregoing description of a repurchase at the option of holders,
the following definitions are applicable:
“Below
Investment Grade Ratings Event” means that on any day within the 60-day period
(which period shall be extended so long as the rating of the “Securities” is
under publicly announced consideration for a possible downgrade by any of
the
Rating Agencies) after the earlier of (1) the occurrence of a Change of Control;
or (2) public notice of the occurrence of a Change of Control or the intention
by CSX to effect a Change of Control, the “Securities” are rated below
Investment Grade by each of the Rating Agencies. Notwithstanding the foregoing,
a Below Investment Grade Ratings Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred in respect
of a particular Change of Control (and thus shall not be deemed a Below
Investment Grade Ratings Event for purposes of the definition of Change of
Control Repurchase Event hereunder) if the Rating Agencies making the reduction
in rating to which this definition would otherwise apply do not announce
or
publicly confirm or inform the Trustee in writing at its request that the
reduction was the result, in whole or in part, of any event or circumstance
comprised of or arising as a result of, or in respect of, the applicable
Change
of Control (whether or not the applicable Change of Control shall have occurred
at the time of the ratings event).
“Change
of Control” means the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
“person” (as that term is used in Section 13(d)(3) of the Exchange Act), other
than CSX or the Company’s subsidiaries, becomes the beneficial owner (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly,
of
more than 50% of the combined voting power of the Company’s Voting Stock or
other Voting Stock into which the Company’s Voting Stock is reclassified,
consolidated, exchanged or changed measured by voting power rather than number
of shares.
“Change
of Control Repurchase Event” means the occurrence of both a Change of Control
and a Below Investment Grade Ratings Event.
“Fitch”
means Fitch Ratings Ltd.
“Investment
Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any
successor rating categories of Moody’s); a rating of BBB- or better by S&P
or Fitch (or its equivalent under any successor rating categories of S&P and
Fitch); or the equivalent Investment Grade credit rating from any additional
Rating Agency or Rating Agencies selected by the Company.
“Moody’s”
means Moody’s Investors Service Inc.
“Rating
Agency” means (1) each of Moody’s, S&P and Fitch; and (2) if any of Moody’s,
S&P or Fitch ceases to rate the “Securities” or fails to make a rating of
the “Securities” publicly available for reasons outside of the Company’s
control, a “nationally recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the
Company (as certified by a resolution of the Chief Executive Officer or Chief
Financial Officer) as a replacement agency for Moody’s, S&P or Fitch, or all
of them, as the case may be.
“S&P”
means Standard & Poor’s Ratings Services, a division of McGraw-Hill,
Inc.
“Voting
Stock” of any specified “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) as of any date means the capital stock of such person that
is
at the time entitled to vote generally in the election of the board of directors
of such person.
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 $2,000.00 and integral
multiples of $1,000.00. 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 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:
April 25,
2007
CSX
CORPORATION
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By:
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/s/
David A. Boor
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Name:
David A. Boor
Title: Vice President - Tax and
Treasurer
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Attest:
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/s/
Mark D. Austin
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Assistant
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
BANK OF NEW YORK
as
Trustee
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By:
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/s/
Michael A. Smith
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Authorized
Officer
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FORM
OF
TRANSFER NOTICE
FOR
VALUE
RECEIVED the undersigned registered holder hereby sell(s), assign(s) and
transfer(s) unto
Insert
Taxpayer Identification No.
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Please
print or typewrite name and address including zip code
of assignee
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the
within Security and all rights thereunder, hereby irrevocably
constituting
and appointing
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attorney
to transfer said Security on the books of the Security Registrar
with full
power of substitution in the
premises.
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Date:
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NOTICE: The
signature to this assignment must correspond
with the name as written upon
the face of the
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within-mentioned
instrument in every particular, without alteration
or any change
whatsoever.
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EXHIBIT
A
Schedule
of Exchanges
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.
CSX
CORPORATION
$200,000,000
6.150%
NOTES DUE 2037
No.
R-2
CUSIP
No.
126408GK3
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 Bank of New York,
successor to JPMorgan Chase Bank, N.A., formerly known as The Chase Manhattan
Bank, as 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, a Second Supplemental
Indenture dated as of May 6, 1997, a Third Supplemental Indenture dated as
of
April 22, 1998, a Fourth Supplemental Indenture dated as of October 30, 2001,
a
Fifth Supplemental Indenture dated as of October 27, 2003, a Sixth Supplemental
Indenture dated as of September 23, 2004, and a Seventh Supplemental Indenture
dated as of April 25, 2007, 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 initial aggregate principal amount of $200,000,000 (TWO
HUNDRED MILLION DOLLARS). All Securities of this series need not be issued
at
the same time and such series may be reopened at any time, without the consent
of any Holder, for issuances of additional Securities of this series. Any
such
additional Securities of this series will have the same interest rate, maturity
and other terms as those initially issued. Further Securities of this series
may
also be authenticated and delivered as provided by Sections 304, 305, 306
or 906
of the Indenture. This Security represents an aggregate initial principal
amount
of $200,000,000 (TWO HUNDRED MILLION 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 CEDE & CO., or its
registered assigns, the principal sum of $200,000,000 (TWO HUNDRED MILLION
DOLLARS) on May 1, 2037 and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) thereon from April 25, 2007 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 of each year, commencing
November 1, 2007, and at Maturity at the rate of 6.150% 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 or automated quotation system on which the Securities
of
this series may be listed or quoted, and upon such notice as may be required
by
such exchange or system, 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.
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 Depository with respect to the Securities of this series (the “Depository”)
notifies the Company that it is unwilling, unable or ineligible to continue
as
Depository for this Security or if at any time the Depository ceases to be
a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor Depository is not appointed by the Company within
90
days, (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 Securities 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 or at the office of any transfer agent designated by the
Company for that purpose. 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.
Payment
of the principal of and any such interest on this Security will be made at
the
offices of the Trustee as Paying Agent, in the Borough of Manhattan, The
City of
New York, or at such other office or agency of the Company as may be designated
by it for such purpose in the Borough of Manhattan, The City of New York,
in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts by check
mailed to the registered Holders thereof;
provided
,
however
,
that at
the option of the Holder, payment of interest may be made by wire transfer
of
immediately available funds to an account of the Person entitled hereto as
such
account shall be provided to the Security Registrar and shall appear in the
Security Register.
The
Securities shall be redeemable, in whole or in part, at the Company’s option at
any time. The Redemption Price for the Securities to be redeemed shall equal
the
greater of the following amounts, plus, in each case, accrued interest thereon
to the Redemption Date:
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100%
of the principal amount of such Securities;
or
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As
determined by the Independent Investment Banker (as defined below),
the
sum of the present values of the remaining scheduled payments of
principal
and interest on the Securities (not including any portion of any
payments
of interest accrued from the most recent Interest Payment Date
to which
interest has been paid to the Redemption Date) discounted to the
Redemption Date on a semiannual basis at the Adjusted Treasury
Rate (as
defined below) plus 20 basis
points.
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The
Redemption Price shall be calculated by the Independent Investment Banker
assuming a 360-day year consisting of twelve 30-day months.
“Adjusted
Treasury Rate” means, with respect to any Redemption Date:
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·
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the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical
release designated “H.15(519)” or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve
System
and which establishes yields on actively traded U.S. Treasury securities
adjusted to constant maturity under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the
remaining
term of the Securities, yields for the two published maturities
most
closely corresponding to the Comparable Treasury Issue will be
determined
and the Adjusted Treasury Rate will be interpolated or extrapolated
from
such yields on a straight line basis, rounding to the nearest month);
or
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If
such release (or any successor release) is not published during
the week
preceding the calculation date or does not contain such yields,
the rate
per annum equal to the semiannual equivalent yield to maturity
of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury
Issue (expressed as a percentage of its principal amount) equal
to the
Comparable Treasury Price for such Redemption
Date.
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The
Adjusted Treasury Rate shall be calculated on the third Business Day preceding
the Redemption Date. The Company shall notify the Trustee, in an Officers’
Certificate, of the Redemption Price no later than the second Business Day
preceding the Redemption Date. The Officers’ Certificate shall set forth the
Redemption Price both as an aggregate amount for all the Securities to be
redeemed and as an amount per $1,000.00 in principal amount of the Securities
to
be redeemed, subject to a minimum $2,000.00 denomination as set forth
below.
“Comparable
Treasury Issue” means the U.S. Treasury security selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of
the
Securities to be redeemed that would be utilized, at the time of selection
and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of
such
Securities.
“Comparable
Treasury Price” means, with respect to any Redemption Date, (A) the average of
five Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations,
or
(B) if the Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
“Independent
Investment Banker” means Citigroup Global Markets Inc. and its successors, or if
that firm is unwilling or unable to serve in that capacity, an independent
investment and banking institution of national standing appointed by the
Company.
“Reference
Treasury Dealer” means:
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Citigroup
Global Markets Inc., J.P. Morgan Securities Inc. and Morgan Stanley
&
Co. Incorporated and their successors; provided that, if any ceases
to be
a primary U.S. Government securities dealer in the United States
(“Primary
Treasury Dealer”), the Company will substitute another Primary Treasury
Dealer; and
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·
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Up
to four other Primary Treasury Dealers selected by the
Company.
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“Reference
Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Independent
Investment Banker, of the bid and asked prices for the Comparable Treasury
Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Independent Investment Banker by such Reference Treasury Dealer
at 5:00 p.m. (New York City time) on the third business day preceding such
Redemption Date.
Notice
of
redemption shall be given as provided in Section 1104 of the Indenture;
provided, that such notice shall not be required to include the Redemption
Price
but shall instead include the manner of calculation of the Redemption Price.
If
the Company elects to partially redeem the Securities, the Trustee will select
in a fair and appropriate manner the Securities to be redeemed.
Unless
the Company defaults in payment of the Redemption Price, on and after the
Redemption Date interest will cease to accrue on the Securities or portions
thereof called for redemption.
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.
If
a
Change of Control Repurchase Event occurs, unless the Company have exercised
the
Company’s right to redeem the “Securities” as described above, the Company will
be required to make an offer to each holder of the “Securities” to repurchase
all or any part (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of that holder’s “Securities” at a repurchase price in cash equal to
101% of the aggregate principal amount of the “Securities” repurchased plus any
accrued and unpaid interest on the “Securities” repurchased to, but not
including, the date of repurchase. Within 30 days following any Change of
Control Repurchase Event or, at the Company’s option, prior to any Change of
Control, but after the public announcement of the Change of Control, the
Control
will mail a notice to each holder, with a copy to the Trustee, describing
the
transaction or transactions that constitute or may constitute the Change
of
Control Repurchase Event and offering to repurchase the “Securities” on the
payment date specified in the notice, which date will be no earlier than
30 days
and no later than 60 days from the date such notice is mailed. The notice
shall,
if mailed prior to the date of consummation of the Change of Control, state
that
the offer to purchase is conditioned on a Change of Control Repurchase Event
occurring on or prior to the payment date specified in the notice. The Company
will comply with the requirements of Rule 14e-1 under the Exchange Act, and
any
other securities laws and regulations thereunder to the extent those laws
and
regulations are applicable in connection with the repurchase of the “Securities”
as a result of a Change of Control Repurchase Event. To the extent that the
provisions of any securities laws or regulations conflict with the Change
of
Control Repurchase Event provisions of the “Securities”, the Company will comply
with the applicable securities laws and regulations and will not be deemed
to
have breached the Company’s obligations under the Change of Control Repurchase
Event provisions of the “Securities” by virtue of such conflict.
On
the
repurchase date following a Change of Control Repurchase Event, the Company
will, to the extent lawful:
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(1)
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accept
for payment all the “Securities” or portions of the “Securities” properly
tendered pursuant to the Company’s
offer;
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(2)
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deposit
with the paying agent an amount equal to the aggregate purchase
price in
respect of all the “Securities” or portions of the “Securities” properly
tendered; and
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(3)
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deliver
or cause to be delivered to the Trustee the “Securities” properly
accepted, together with an officers’ certificate stating the aggregate
principal amount of the “Securities” being purchased by the
Company.
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The
paying agent will promptly mail to each holder of the “Securities” properly
tendered the purchase price for the “Securities”, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book-entry) to each
holder
a new note equal in principal amount to any unpurchased portion of any
“Securities” surrendered; provided that each new note will be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess
thereof.
The
Company will not be required to make an offer to repurchase the “Securities”
upon a Change of Control Repurchase Event if a third party makes such an
offer
in the manner, at the times and otherwise in compliance with the requirements
for an offer made by the Company and such third party purchases all the
“Securities” properly tendered and not withdrawn under its offer.
For
purposes of the foregoing description of a repurchase at the option of holders,
the following definitions are applicable:
“Below
Investment Grade Ratings Event” means that on any day within the 60-day period
(which period shall be extended so long as the rating of the “Securities” is
under publicly announced consideration for a possible downgrade by any of
the
Rating Agencies) after the earlier of (1) the occurrence of a Change of Control;
or (2) public notice of the occurrence of a Change of Control or the intention
by CSX to effect a Change of Control, the “Securities” are rated below
Investment Grade by each of the Rating Agencies. Notwithstanding the foregoing,
a Below Investment Grade Ratings Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred in respect
of a particular Change of Control (and thus shall not be deemed a Below
Investment Grade Ratings Event for purposes of the definition of Change of
Control Repurchase Event hereunder) if the Rating Agencies making the reduction
in rating to which this definition would otherwise apply do not announce
or
publicly confirm or inform the Trustee in writing at its request that the
reduction was the result, in whole or in part, of any event or circumstance
comprised of or arising as a result of, or in respect of, the applicable
Change
of Control (whether or not the applicable Change of Control shall have occurred
at the time of the ratings event).
“Change
of Control” means the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
“person” (as that term is used in Section 13(d)(3) of the Exchange Act), other
than CSX or the Company’s subsidiaries, becomes the beneficial owner (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly,
of
more than 50% of the combined voting power of the Company’s Voting Stock or
other Voting Stock into which the Company’s Voting Stock is reclassified,
consolidated, exchanged or changed measured by voting power rather than number
of shares.
“Change
of Control Repurchase Event” means the occurrence of both a Change of Control
and a Below Investment Grade Ratings Event.
“Fitch”
means Fitch Ratings Ltd.
“Investment
Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any
successor rating categories of Moody’s); a rating of BBB- or better by S&P
or Fitch (or its equivalent under any successor rating categories of S&P and
Fitch); or the equivalent Investment Grade credit rating from any additional
Rating Agency or Rating Agencies selected by the Company.
“Moody’s”
means Moody’s Investors Service Inc.
“Rating
Agency” means (1) each of Moody’s, S&P and Fitch; and (2) if any of Moody’s,
S&P or Fitch ceases to rate the “Securities” or fails to make a rating of
the “Securities” publicly available for reasons outside of the Company’s
control, a “nationally recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the
Company (as certified by a resolution of the Chief Executive Officer or Chief
Financial Officer) as a replacement agency for Moody’s, S&P or Fitch, or all
of them, as the case may be.
“S&P”
means Standard & Poor’s Ratings Services, a division of McGraw-Hill,
Inc.
“Voting
Stock” of any specified “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) as of any date means the capital stock of such person that
is
at the time entitled to vote generally in the election of the board of directors
of such person.
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 $2,000.00 and integral
multiples of $1,000.00. 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 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:
April 25,
2007
CSX
CORPORATION
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By:
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/s/
David A. Boor
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Name:
David A. Boor
Title: Vice President - Tax and
Treasurer
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Attest:
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/s/
Mark D. Austin
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Assistant
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
BANK OF NEW YORK
as
Trustee
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By:
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/s/
Michael A. Smith
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Authorized
Officer
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FORM
OF
TRANSFER NOTICE
FOR
VALUE
RECEIVED the undersigned registered holder hereby sell(s), assign(s) and
transfer(s) unto
Insert
Taxpayer Identification No.
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Please
print or typewrite name and address including zip code
of assignee
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the
within Security and all rights thereunder, hereby irrevocably
constituting
and appointing
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attorney
to transfer said Security on the books of the Security Registrar
with full
power of substitution in the
premises.
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Date:
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NOTICE: The
signature to this assignment must correspond
with the name as written upon
the face of the
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within-mentioned
instrument in every particular, without
alteration or any change
whatsoever.
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EXHIBIT
A
Schedule
of Exchanges