SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
2-63273 62-1051971 ------- ---------- (Commission (I.R.S. Employer File No.) Identification No.) |
ITEM 5. OTHER EVENTS
On April 22, 1998, CSX Corporation (the "Company") entered into a Distribution Agreement (the "Distribution Agreement") with Chase Securities Inc., BancAmerica Robertson Stephens, Credit Suisse First Boston Corporation, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Salomon Brothers Inc. (collectively, the "Agents") with respect to the issue and sale by the Company of its Medium- Term Notes, Series B, due nine months or longer from date of issue (the "Notes"). The Company has authorized the issuance and sale of up to U.S. $248,000,000 aggregate initial offering price (or its equivalent, based upon the applicable exchange rate at the time of issuance, in such foreign currencies or units of two or more currencies as the Company shall designate at the time of issuance) of Notes through the Agents pursuant to the terms of the Distribution Agreement. The Notes will be issued pursuant to an indenture dated as of August 1, 1990 between the Company and The Chase Manhattan Bank, as trustee (the "Trustee"), as supplemented by a First Supplemental Indenture dated as of June 15, 1991, a Second Supplemental Indenture dated as of May 6, 1997 and a Third Supplemental Indenture dated as of April 22, 1998 and an Action of Authorized Pricing Officers dated April 22, 1998. The Notes may be Fixed Rate Notes or Floating Rate Notes and may be offered at a discount from the principal amount thereof due at maturity. The Notes have been registered under the Securities Act of 1933, as amended (the "Act") by Registration Statements on Form S-3 (Registration Nos. 33-48841 and 33-41236). On April 23, 1998, the Company filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b)(2) under the Act its Prospectus, dated April 22, 1998, and Prospectus Supplement, dated April 22, 1998, pertaining to the offering and sale of the Notes.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits required to be filed by Item 601 of Regulation S-K.
The following exhibits are filed as a part of this report.
1.1 Distribution Agreement, dated April 22, 1998, among the Company and the Agents.
4.1 Second Supplemental Indenture, dated as of May 6, 1997, between the Company and the Trustee (incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-4 (Registration No. 333-28523) filed with the Commission on June 5, 1997).
4.2 Third Supplemental Indenture, dated as of April 22, 1998, between the Company and the Trustee.
4.3 Action of Authorized Pricing Officers dated April 22, 1998.
4.4 Form of Fixed Rate Note.
4.5 Form of Floating Rate Note.
12.1 Computation of ratio of earnings to fixed charges.
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
CSX CORPORATION
By: /s/ GREGORY R. WEBER -------------------- Gregory R. Weber Vice President and Treasurer Date: May 12, 1998 |
Exhibit Description ------- ----------- 1.1 Distribution Agreement, dated April 22, 1998, among the Company and the Agents. 4.1 Second Supplemental Indenture, dated as of May 6, 1997, between the Company and the Trustee (incorporated by reference to Exhibit 4.3 to the Company's Registration Statement on Form S-4 (Registration No. 333-28523) filed with the Commission on June 5, 1997). 4.2 Third Supplemental Indenture, dated as of April 22, 1998, between the Company and the Trustee. 4.3 Action of Authorized Pricing Officers dated April 22, 1998. 4.4 Form of Fixed Rate Note. 4.5 Form of Floating Rate Note. 12.1 Computation of ratio of earnings to fixed charges. |
EXHIBIT 1.1
EXECUTION COPY
CSX Corporation
Medium-Term Notes Series B Due From
Nine Months or Longer from Date of Issue
DISTRIBUTION AGREEMENT
April 22, 1998
Chase Securities Inc.
270 Park Ave.
New York, NY 10017
BancAmerica Robertson Stephens
231 South LaSalle Street, 18/th/ floor
Chicago, IL 60697
Credit Suisse First Boston Corporation
Eleven Madison Ave.
New York, NY 10010-3629
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
Merrill Lynch & Co.
World Financial Center; North Tower
New York, NY 10281-1310
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Charlotte, NC 28255
NC1007-07-01
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
CSX Corporation, a Virginia corporation (the "Company"), confirms its agreement with Chase Securities Inc., BancAmerica Robertson Stephens, Credit Suisse First Boston Corporation, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch & Co., Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Salomon Brothers Inc (the "Agents") with respect to the issue and sale by the Company of its Medium-Term Notes Series B described herein (the "Notes"). The Notes are to be issued pursuant to an Indenture dated as of August 1, 1990 between the Company and The Chase Manhattan Bank, as trustee (the "Trustee") as supplemented by a First Supplemental Indenture dated as of June 15, 1991, a Second Supplemental Indenture dated as of May 6, 1997 and a Third Supplemental Indenture dated as of April 22, 1998 (as supplemented, the "Indenture"). As of the date hereof, the Company has authorized the issuance and sale of up to U.S. $248,000,000 aggregate initial offering price (or its equivalent, based upon the applicable exchange rate at the time of issuance, in such foreign currencies or units of two or more currencies as the Company shall designate at the time of issuance) of Notes through the Agents pursuant to the terms of this Agreement. It is understood, however, that the Company may from time to time authorize the issuance of additional Notes and that such additional Notes may be sold through or to one or more of the Agents pursuant to the terms of this Agreement, all as though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company directly to purchasers, in which case the Agents will act as agents of the Company in soliciting Note purchasers, and (as may from time to time be agreed to by the Company and an Agent) to an Agent as principal for resale to purchasers. In addition, the Company reserves the right to sell Notes directly to investors, and solicit and accept offers to purchase Notes directly from investors from time to time on its own behalf.
The Company has filed with the Securities and Exchange Commission (the "SEC") a registration statement (No. 33-41236) and a registration statement (No. 33-48841), both on Form S-3 for the registration of debt securities, including the Notes, warrants to purchase debt securities and currency warrants, under the Securities Act of 1933, as amended (the "1933 Act") and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the SEC under the 1933 Act (the "1933 Act Regulations"). Such registration statements have been declared effective by the SEC and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration statements (and any further registration statements which may be filed by the Company for the purpose of registering additional Notes and in connection with which this Agreement is included as an exhibit) and the prospectus constituting a part of Registration Statement No. 33-48841, and any prospectus supplement relating to the Notes, including all documents incorporated therein by reference, as from time to time amended or supplemented by the filing of documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act") or the 1933 Act or otherwise, are referred to herein as the "Registration Statement" and the "Prospectus", respectively, except that if any revised prospectus shall be provided to the Agents by the Company for use in connection with the offering of the Notes which is not required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to such revised prospectus from and after the time it is first provided to the Agents for such use.
an Agent as principal shall be made pursuant to a Terms Agreement in accordance with Section 3(b) hereof.
to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as of the date hereof, does not, and as of each Representation Date will not, contain an 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 representation or warranty as to statements in or omissions from the Registration Statement or Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of an Agent expressly for use in the Registration Statement or Prospectus or to that part of the Registration Statement which constitutes the Trustee's Statement of Eligibility and Qualification under the 1939 Act ("Form T-1").
The Company reserves the right, in its sole discretion, to suspend solicitation of purchases of the Notes through the Agents, as agents, commencing at any time for any period of time or permanently. Upon receipt of instructions from the Company, the Agents will immediately suspend solicitation of purchases from the Company until such time as the Company has advised the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a discount, equal to the applicable percentage of the principal amount of each Note sold by the Company as a result of a solicitation made by such Agent as set forth in Schedule A hereto. Without the prior approval of the Company, no Agent may reallow any portion of the commission payable pursuant hereto to dealers or purchasers in connection with the offer and sale of any Notes.
The purchase price, interest rate, maturity date and other terms of the Notes shall be agreed upon by the Company and the Agents and set forth in a pricing supplement to the Prospectus to be prepared following each acceptance by the Company of an offer for the purchase of Notes. Except as may be otherwise provided in such supplement to the Prospectus, the Notes will be issued in denominations of U.S. $1,000 or any amount in excess thereof which is an integral multiple of U.S. $1,000. All Notes sold through an Agent as agent will be sold at 100% of their principal amount unless otherwise agreed to by the Company and such Agent.
representations and warranties of the Company contained herein and shall be subject to the terms and conditions set forth herein. Each Terms Agreement shall specify the principal amount of Notes to be purchased by an Agent pursuant thereto, the price to be paid to the Company for such Notes, the time and place of delivery of and payment for such Notes and such other provisions (including further terms of the Notes) as may be mutually agreed upon. Unless expressly authorized by the Company pursuant to the Terms Agreement, no Agent is authorized to utilize a selling or dealer group in connection with the resale of the Notes purchased. Such Terms Agreement shall also specify the requirements for any opinion of counsel, officer's certificate or comfort letter to be delivered by, or on behalf of, the Company.
The Company covenants with the Agents as follows:
supplement providing solely for a change in the interest rates of Notes or other terms of Notes commonly included in a pricing supplement), without having previously advised and furnished to the Agents copies of any such amendment or supplement to which the Agents, on advice from counsel, have not reasonably objected within a reasonable period of time (it being understood and agreed that the Agents will receive such copies in confidence and that such copies will not be disseminated outside the Agents' offices or within the Agents' offices to anyone other than those persons having a need to know such information in connection with the performance of the Agents' services under this Agreement). The Company will furnish the Agents with copies of filings pursuant to the 1934 Act on or after the date of such filing.
fiscal year or preliminary financial statement information with respect to any fiscal year (the "Flash Earnings Report"), the Company shall furnish such information to the Agents, confirmed in writing, and shall cause the Prospectus to be amended or supplemented as soon as reasonably practicable thereafter to include or incorporate by reference capsule financial information with respect thereto and corresponding information for the comparable period of the preceding fiscal year, as well as such other information and explanations as shall be necessary for an understanding thereof or as shall be required by the 1933 Act or the 1933 Act Regulations. The Agents shall, upon the request of the Company, suspend solicitation of purchases of the Notes for the period from the release of the Flash Earnings Report until the Company has caused the Prospectus to be amended or supplemented to include or incorporate by reference such information and the Company will not accept any offer to purchase Notes during such period.
which the Notes have been qualified as above provided. The Company will promptly advise the Agents of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose.
The obligations of the Agents to solicit offers to purchase the Notes as agents of the Company, the obligations of any purchasers of the Notes sold through an Agent as agent, and any obligation of an Agent to purchase Notes pursuant to a Terms Agreement will be subject to the accuracy, as of each Representation Date, of the representations and warranties on the part of the Company herein and to the accuracy, as of each Representation Date, of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all its covenants and agreements herein contained and to the following additional conditions precedent:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the Commonwealth of Virginia.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries considered as one enterprise.
(iv) Each subsidiary of the Company that is a significant subsidiary (each a "Significant Subsidiary") as defined in Rule 405 of Regulation C of the 1933 Act Regulations has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus, and, to the best of such counsel's knowledge, is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to so qualify or be in good standing would not have a material adverse effect on the Company and its subsidiaries considered as one enterprise; all of the issued and outstanding capital stock of each such Significant Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable, and, except for directors' qualifying shares, is owned by the Company, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(v) 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 by this Agreement, except for a filing of a prospectus under Rule 424 and such as may be required under state securities laws.
(vi) The execution, delivery and performance of the Indenture and 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, any 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 known to such counsel to which the Company or any such Significant Subsidiary is a party or by which the Company or any Significant Subsidiary is bound or to which any of the properties of the Company or any Significant Subsidiary is subject, or the charter or by-laws of the Company or any Significant Subsidiary, and the Company has full power and authority to authorize, issue and sell the Notes as contemplated by this Agreement.
(vii) Each document filed pursuant to the 1934 Act and incorporated by reference in the Prospectus complied when filed as to form in all material respects with the 1934 Act and the 1934 Act Regulations thereunder.
In addition, such counsel shall state (the "Additional Statements") that he or she has participated in conferences with officers and other representatives of the Company, representatives of Ernst & Young LLP, independent auditors for the Company, and the representatives of the Agents and Counsel for the Agents, at which the contents of the Registration Statement, the 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 or the Prospectus or any amendment thereof or supplement thereto, no facts have come to the attention of such counsel which would lead such counsel to believe (A) that the Registration Statement and the Prospectus included therein (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), as of the date of filing of the Company's Annual Report on Form 10-K for the fiscal year ended
December 26, 1997, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (B) that the Prospectus as amended or supplemented on date of the Prospectus and the date of such opinion (other than 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 rendered) contains or contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(B) The opinion of McGuire, Woods, Battle & Boothe LLP, counsel to the Company, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company.
(ii) The Indenture has been duly authorized, executed and delivered by the Company and (assuming the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally binding agreement 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, and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States.
(iii) The Notes are in due and proper form, have been duly authorized for issuance, offer and sale pursuant to this Agreement, and when the terms of a particular Note and of the issue and sale thereof have been duly authorized and established in conformity with the Indenture and such Note has been duly completed, executed, authenticated and issued in accordance with the Indenture and the Action of Authorized Pricing Officers and delivered against payment
therefor as contemplated by this Agreement, such Note will constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, and except further as enforcement thereof may be limited by (A) requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States, and each holder of Notes will be entitled to the benefits of the Indenture.
(iv) The Indenture is qualified under the 1939 Act.
(v) The Registration Statement is effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act nor proceedings therefor initiated or threatened by the SEC.
(vi) 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 1933 Act and the applicable rules and regulations promulgated thereunder.
(vii) The statements in the Prospectus under the captions "Description of Debt Securities", "Description of Debt Warrants", "Description of Currency Warrants", "Description of Notes" and "Special Provisions Relating to Foreign Currency Notes", insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate summaries of such provisions.
(viii) The information contained in the Prospectus under the caption "United States Taxation", to the extent that it constitutes matters
of law or legal conclusions, has been reviewed by such counsel and is correct in all material respects.
In addition, subject to such counsel's customary qualifications about the scope of its obligations in connection with its participation in the preparation of documents, such counsel shall make the Additional Statements.
In rendering such opinion, McGuire, Woods, Battle & Boothe LLP may (A) assume that the Notes and the Indenture are governed by Virginia law and (B) rely 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(a)(1)(B) to the Prospectus shall be deemed to include any amendment or supplement thereto as of the date of such opinion.
(i) They are independent auditors with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements of the Company audited by them and included in the Company's Annual Report on Form 10-K for the fiscal year ended December 26, 1997 and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the 1934 Act and the related published rules and regulations thereunder.
(iii) They have performed specified procedures, not constituting an audit, including a reading of the unaudited interim consolidated financial statements included or incorporated by reference in the Prospectus and the latest available interim consolidated financial statements of the Company, a reading of the minute books of the Company since the end of the most recent fiscal year with respect to which an audit report has been issued, inquiries of and discussions with certain officials of the Company responsible for financial and accounting matters with respect to the unaudited interim consolidated financial statements included or incorporated by reference in the Registration Statement and Prospectus and the latest available unaudited interim consolidated financial statements of the Company and such other inquiries and procedures as may be specified in such letter carried out to a specified date not more than five days prior to the date hereof, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that: (A) the unaudited interim consolidated financial statements of the Company included or incorporated by reference in the Registration Statement and Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the 1934 Act and the 1934 Act Regulations or were not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference therein or that the latest available interim consolidated financial statements of the Company are not stated on a basis substantially consistent with that of the audited consolidated financial statements included or incorporated by reference in the Registration Statement and the Prospectus, or (B) at the date of the latest available balance sheet read by such independent auditors, there were any net decreases in the consolidated shareholders' equity of the Company or any increase in consolidated long-term debt of the Company in each case as compared with the amounts shown on the most recent consolidated balance sheet of the Company and its subsidiaries included or incorporated by reference in the Registration Statement and Prospectus or, for the period from the date of the latest income statement included or incorporated by reference in the Prospectus to the date of the latest available income statement read by such independent auditors there were any net changes, as compared with the corresponding period of the previous year, in the consolidated operating revenues except in each such case as set forth in or
contemplated by the Registration Statement and Prospectus or except for such exceptions enumerated in such letter as shall have been agreed to by the Agents and the Company.
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement
and the Prospectus, and the limited procedures referred to in clause
(iii) above, they have carried out certain other specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information which are derived from
accounting records of the Company and which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting records of the Company and its subsidiaries
identified in such letter.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of an Agent, any applicable Terms Agreement) may be terminated by the
Agents or, as to any Agent, by such Agent, by notice to the Company at any time
and any such termination shall be without liability of any party to any other
party, except that the covenant regarding provision of an earnings statement set
forth in Section 4(g) hereof, the provisions concerning payment of expenses
under Section 9 hereof, the indemnity and contribution agreement set forth in
Section 8 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery of Section 10 hereof and the provisions set forth
under "Parties" of Section 14 hereof shall remain in effect.
Delivery of Notes sold through an Agent as agent shall be made by the Company to such Agent for the account of any purchaser only against payment therefor in immediately available funds. In the event that a purchaser shall fail either to accept delivery
of or to make payment for a Note on the date fixed for settlement, the relevant Agent shall promptly notify the Company and deliver the Note to the Company, and, if such Agent has already paid the Company for such Note, the Company will promptly return such funds to such Agent. If such failure occurred for any reason other than default by such Agent in the performance of its obligations hereunder, the Company will reimburse such Agent on an equitable basis for its loss of the use of the funds for the period such funds were credited to the Company's account.
The Company covenants and agrees with the Agents that:
to in said Section 5(b), modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate.
reflect changes in the financial statements and other information derived from the accounting records of the Company; provided, however, that if the Registration Statement or the Prospectus is amended or supplemented solely to include financial information as of and for a fiscal quarter, Ernst & Young may limit the scope of such letter to the unaudited financial statements included in such amendment or supplement.
(a) The Company will indemnify and hold harmless each Agent against any losses, claims, damages or liabilities, joint or several, to which such Agent may become subject, under the 1933 Act 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 any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, 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 light of the circumstances under which they were made, not misleading, and will reimburse each Agent for any legal or other expenses reasonably incurred by such Agent 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 in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Agent, if any, specifically for use therein. The Company acknowledges that the statements set forth in the first sentence of the last paragraph of text on the cover page of the Prospectus Supplement dated April 22, 1998 (the "Prospectus Supplement ") and the second paragraph of text on page S-2 of the Prospectus Supplement and the sixth full paragraph of text under the caption "Supplemental Plan of Distribution" in the Prospectus Supplement, concerning activities of the Agents that may stabilize or maintain the price of the Notes (the "Furnished Information") constitute the only information furnished in writing by or on behalf of the Agents for inclusion in the Prospectus.
(b) Each Agent severally agrees that it will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the 1933 Act 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 any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Agent, if any, specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred. The Company acknowledges that the only information furnished in writing by or on behalf of the Agents for inclusion in the Prospectus is the Furnished Information.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability the indemnification obligation provided under subsection (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 subsection (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
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding. An indemnifying party shall not be liable under this Section 8 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 indemnification provided for in this Section 8 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then the Company and the Agent [who sold the Notes which are the subject of the claim for which contribution is to be made] shall contribute to the aggregate losses, claims, damages and liabilities referred to in subsection (a) or (b) above (collectively, the "Losses") (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the applicable Agent on the other from such offering of the Notes or (ii) if the allocation provided by clause (i) above is unavailable for any reason, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the applicable Agent on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the applicable Agent on the other shall be deemed to be in the same proportion as the total net proceeds from the sale of Notes which are the subject of the claim for which contribution is to be made sold to or through such Agent (before deducting expenses) received by the Company bear to the total discounts and commissions received by such Agent in connection with such sale. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or an Agent, 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 Agents 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. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Agent shall be required to contribute any amount in excess of the amount by which the total price at which the Notes which are the subject of the claim for which contribution is to be made sold to or through such Agent were offered to the public exceeds the amount of any damages which such Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The Agents' obligations in this subsection (d) to contribute are several in proportion to the total price at which Notes which are the subject of the claim for which contribution is to be made sold to or through each Agent were offered to the public and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Agent within the meaning of the Act; and the obligations of the Agents under this Section 8 shall be in addition to any liability which the respective Agents may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company, to each officer of the Company who has signed the Registration Statements and to each person, if any, who controls the Company within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act.
The Company will pay all expenses incident to the performance of its obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement and all amendments thereto and the Prospectus and any amendments or supplements thereto;
(ii) The preparation, filing and reproduction of this Agreement;
(iii) The preparation, printing, issuance and delivery of the Notes, including any fees and expenses relating to the use of book-entry notes;
(iv) The fees and disbursements of the Company's accountants and counsel, of the Trustee and its counsel, and of any Calculation Agent or Exchange Rate Agent;
(v) The reasonable fees and disbursements of counsel to the Agents incurred from time to time in connection with the transactions contemplated hereby;
(vi) The qualification of the Notes under state securities laws in accordance with the provisions of Section 4(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Agents in connection therewith and in connection with the preparation of any Blue Sky Survey and any Legal Investment Survey;
(vii) The printing and delivery to the Agents in quantities as hereinabove stated of copies of the Registration Statement and any amendments thereto, and of the Prospectus and any amendments or supplements thereto, and the delivery by the Agents of the Prospectus and any amendments or supplements thereto in connection with solicitations or confirmations of sales of the Notes;
(viii) The preparation, printing and delivery to the Agents of copies of the Indenture and all supplements and amendments thereto;
(ix) Any fees charged by rating agencies for the rating of the Notes;
(x) The fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc.; and
(xi) Any reasonable advertising and other reasonable out-of- pocket expenses of the Agents incurred with the approval of the Company.
The respective representations, warranties and agreements of the Company or its officers and of the Agents contained in or made pursuant to this Agreement shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Agents or the Company or any of the officers, directors or controlling persons referred to in Section 8 hereof, and shall survive each delivery of and payment for any of the Notes.
national or international calamity or crisis the effect of which on financial markets is such as to make it, in the reasonable judgment of such Agent, impracticable or inadvisable to proceed with the offering or delivery of the Notes, (iii) trading in any securities of the Company has been suspended by the SEC or the New York Stock Exchange, or if trading generally on the New York Stock Exchange shall have been suspended or materially limited or minimum prices for trading have been fixed on such exchange, (iv) if a banking moratorium shall have been declared by either federal or New York State authorities or if a banking moratorium shall have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Notes are denominated or payable or (v) 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).
Unless otherwise provided herein, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail or by telex, telecopier or telegram, and any such notice shall be effective when received at the address specified below.
If to the Company:
CSX Corporation
One James Center
901 East Cary Street
Richmond, Virginia 23219
Attention: David D. Owen
Managing Director--Corporate Finance
Telephone: (804) 782-1428 Telecopier: (804) 783-1346
If to Agents:
Chase Securities Inc.
270 Park Ave.
New York, NY 10017
Attention: Medium-Term Note Desk Telephone: (212) 834-4421 Telecopier: (212) 834-6081
BancAmerica Robertson Stephens
231 South LaSalle Street, 18/th/ floor
Chicago, IL 60697
Attention: Matthew Carey - MTN Product Management
Telephone: (312) 828-2860
Telecopier: (312) 974-8936
Credit Suisse First Boston
Eleven Madison Ave.
New York, NY 10010-3629
Attention: Short and Medium Term Finance Telephone: (212) 325-7198 Telecopier: (212) 325-8183
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: [Karen Robertson]
Telephone: (212) 902-8224
Telecopier: (212) 422-9458
Lehman Brothers Inc.
3 World Financial Center; 12/th/ floor
New York, NY 10285
Attention: Medium-Term Notes
Telephone: (212) 528-7857
Telecopier: (212) 528-8074
Merrill Lynch & Co.
World Financial Center; North Tower
New York, NY 10281-1310
Attention: Medium-Term Note Product Management Telephone: (212) 449-7476 Telecopier: (212) 449-2234
Morgan Stanley & Co. Incorporated
1585 Broadway - 2/nd/ floor
New York, NY 10036
Attention: Manager - Continuously Offered Products
Telephone: (212) 761-4000
Telecopier: (212) 761-0780
With a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway - 34/th/ Floor
New York, NY 10036
Attention: Peter Cooper, Investment Banking Information Center Telephone: (212) 761-8385 Telecopier: (212) 761-0260
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Charlotte, NC 28255
NC1007-07-01
Attention: Continuously Offered Products
Telephone: (704) 386-6616
Telecopier: (704) 388-9939
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Attention: Medium-Term Note Department
Telephone: (212) 783-5907
Telecopier: (212) 783-2043
or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 12.
This Agreement and all the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in New York.
This Agreement shall inure to the benefit of and be binding upon
the Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 8 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
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.
The section headings are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with the Agents' understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
CSX CORPORATION
By:/s/ David D. Owen ------------------------------- Name: Title: |
Accepted:
CHASE SECURITIES INC.
By: /s/ John W. Judson --------------------------- Name: John W. Judson Title: Managing Director |
BANCAMERICA ROBERTSON STEPHENS
By: /s/ James Baldini --------------------------- Name: James Baldini Title: Managing Director |
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Helena M. Willner --------------------------- Name: Helena M. Willner Title: Vice President |
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
By: /s/ M. Antonia Paterno-Castello ------------------------------- Name: M. Antonia Paterno-Castello Title: Managing Director |
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose ------------------------------- Name: Scott G. Primrose Title: Authorized Signatory |
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot III ------------------------------- Name: Harold J. Hendershot III Title: Vice President |
NATIONSBANC MONTGOMERY SECURITIES LLC
By: /s/ Lynn T. McConnell ------------------------- Name: Lynn T. McConnell Title: Managing Director |
SALOMON BROTHERS INC
By: /s/ Fred Larsen ------------------------- Name: Fred Larsen Title: Director |
SCHEDULE A
As compensation for the services of an Agent hereunder, the Company shall pay it, on a discount basis, a commission for the sale of each Note equal to the principal amount of such Note multiplied by the appropriate percentage set forth below:
PERCENT OF MATURITY RANGES PRINCIPAL AMOUNT --------------- ---------------- From 9 months but less than 1 year....... .125% From 1 year but less than 18 months...... .150 From 18 months but less than 2 years..... .200 From 2 years but less than 3 years....... .250 From 3 years but less than 4 years....... .350 From 4 years but less than 5 years....... .450 From 5 years but less than 6 years....... .500 From 6 years but less than 7 years....... .550 From 7 years but less than 10 years...... .600 From 10 years but less than 15 years..... .625 From 15 years but less than 20 years..... .700 From 20 years to 30 years(1)............. .750 ----------- |
(1) Commission for the sale of Notes with a maturity in excess of 30 years shall be determined by mutual agreement of the Company and the applicable Agent.
The following terms, if applicable, shall be agreed to by an Agent and the Company pursuant to each Terms Agreement:
Principal Amount: $________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable at the Option of the Company:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayment at the Option of the Holder:
Repayment Date:
Repayment Percentage:
Date of Maturity:
Purchase Price: _____%:
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate of the same tenor as the certificate referred to
in Section 7(b) of the Distribution Agreement.
Legal Opinion of the same tenor as the legal opinion referred to in
Section 7(c) of the Distribution Agreement.
Comfort Letter of the same tenor as the legal opinion referred to in
Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement.
CSX CORPORATION
We, [authorized officers' names], [titles] of CSX Corporation, a Virginia corporation (the "Company"), pursuant to Section 5(b) of the Distribution Agreement dated April __, 1998 (the "Distribution Agreement") between the Company and Chase Securities Inc., BancAmerica Robertson Stephens, Credit Suisse First Boston Corporation, Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch & Co., Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Salomon Brothers Inc hereby certify that, to the best of our knowledge, after reasonable investigation:
1. The representations and warranties of the Company contained in
Section 2 of the Distribution Agreement are true and correct in all material
respects with the same force and effect as though expressly made at and as of
the date hereof;
2. The Company has performed or complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date hereof; and
3. No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or threatened by the Securities and Exchange Commission.
IN WITNESS WHEREOF, we have hereunto signed our names. Dated: _____________, ____
_______________, 19__
[Agents]
Ladies and Gentlemen:
[I] We have delivered an opinion to you dated __________, 19__ as counsel to CSX Corporation (the "Company"), pursuant to Section 5(a) of the Distribution Agreement, dated as of _____________ ___, 19__ among the Company and you, as Agent[s]. You may continue to rely upon such opinion as if it were dated as of this date except that all statements and opinions contained therein shall be deemed to relate to the Registration Statement and Prospectus as amended and supplemented to this date.
This letter is delivered to you pursuant to [Section 7(c) of the Distribution Agreement] [Section __ of the Terms Agreement, dated as of _______, between the Company and you].
Very truly yours,
(Three copies of this Delayed Delivery Contract should be signed and returned to the address shown below so as to arrive not later than __:00 A.M., New York time, on __________, 19___.)
[Insert date of offering of Securities to be sold]
CSX Corporation
c/o [Insert name and address
of Agents]
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from CSX Corporation, a Virginia corporation (the "Company"), and the Company agrees to sell to the undersigned, as of the date hereof, for delivery on __________________, 19___ (the "Delivery Date"), $___________ principal amount of the Company's __________________________ (hereinafter called the "Notes"), offered by the Company's Prospectus, dated ____________, 19__, as supplemented by a Prospectus Supplement, dated ____________, 19__, and a Pricing Supplement, dated ____________, 19__, acknowledged, at ____% of the principal amount thereof plus accrued interest, if any, and on the further terms and conditions set forth in this Delayed Delivery Contract (this "Contract").
Payment for the Notes which the undersigned has agreed to purchase for delivery on the Delivery Date shall be made to the Company or its order in immediately available funds in [Richmond, Virginia], at 10:00 A.M., [Richmond] time, at _______________________ on the Delivery Date upon delivery to [the undersigned] of the Notes to be purchased by the undersigned [in definitive form] and in such denominations [and registered in such names] as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment are for the sole convenience of the undersigned; that the purchase hereunder of Securities is to be
regarded in all respects as a purchase as of the date of this Contract; that the obligation of the Company to make delivery of and accept payment for, and the obligation of the undersigned to take delivery of and make payment for, Securities on the Delivery Date shall be subject only to the condition that investment in the Securities shall not at the Delivery Date be prohibited under the laws of any jurisdiction in the United States to which the undersigned is subject.
The undersigned represents that its investment in such Securities is not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which govern such investment.
This Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.
This Contract may be executed by either of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance of any Delayed Delivery Contract (including this Contract) is in the Company's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If this Contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
By:______________________________
Accepted, as of the date
first above written
CSX CORPORATION
By:_______________________
EXHIBIT 4.2
CSX CORPORATION
AND
THE CHASE MANHATTAN BANK,
TRUSTEE
THIRD SUPPLEMENTAL
INDENTURE
SENIOR SECURITIES
THIRD SUPPLEMENTAL INDENTURE, dated as of April 22, 1998 between CSX Corporation, a Virginia corporation (the "Company"), and The Chase Manhattan Bank, a New York banking corporation, Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee a certain indenture, dated as of August 1, 1990 and supplemented by the First Supplemental Indenture dated as of June 15, 1991 and the Second Supplemental Indenture dated as of May 6, 1997 (the "Second Supplemental Indenture") (the indenture, as so supplemented, is herein called the "Indenture"), pursuant to which one or more series of unsecured debentures, securities or other evidences of indebtedness of the Company (herein called the "Securities") may be issued from time to time;
WHEREAS, Section 901 of the Indenture provides that the Company, when authorized by a Board Resolution, and the Trustee may at any time and from time to time enter into one or more indentures supplemental to the Indenture for the purpose, among other things, of (i) changing or eliminating any of the provisions of the Indenture, provided that such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision, (ii) establishing the form or terms of Securities of any series and any related coupons as permitted by Sections 201 and 301 of the Indenture or (iii) making any other provisions with respect to matters or questions arising under the Indenture, provided that such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect;
WHEREAS, the Second Supplemental Indenture amended and supplemented the terms of the Indenture with respect to the May 1997 Securities (as defined in the Second Supplemental Indenture);
WHEREAS, the Second Supplemental Indenture, by its terms, was applicable only to the May 1997 Securities;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and by this Third Supplemental Indenture to amend the Indenture with respect to all series of Securities issued under the Indenture on or after May 6, 1997 by making the terms, provisions and conditions of the Second Supplemental Indenture applicable to all such series of Securities; and
WHEREAS, all things necessary to make this Third Supplemental Indenture a valid agreement of the Company and the Trustee and a valid amendment of and supplement to the Indenture have been done.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of any series of Securities issued on or after May 6, 1997, as follows:
ARTICLE ONE
The terms, provisions and conditions of the Second Supplemental Indenture (except to the extent such terms, provisions or conditions would limit the applicability of the Second Supplemental Indenture to the May 1997 Securities) shall apply to all series of Securities issued under the Indenture on or after May 6, 1997.
ARTICLE TWO
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
CSX CORPORATION
[Seal] By: /s/ David D. Owen --------------------------------------- Name: David D. Owen Title: Managing Director--Corporate Finance Attest: /s/ Rachel E. Geiersbach ---------------------------------------- Assistant Corporate Secretary [Seal] THE CHASE MANHATTAN BANK, as Trustee By: /s/ Ronald J. Halleran ---------------------------------------- Name: Ronald J. Halleran Title: Second Vice President Attest: /s/ [Signature] ---------------------------------------- Title: Assistant Secretary |
THIRD SUPPLEMENTAL INDENTURE
State of Virginia
City of Richmond ss.:
On the 22nd day of April, 1998, before me personally came David D. Owen to me known, who, being by me duly sworn, did depose and say that he is Managing Director--Corporate Finance of CSX Corporation, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority.
(Notarial Seal) /s/ Cynthia H. Freeze ----------------------- THIRD SUPPLEMENTAL INDENTURE |
State of New York
County of ss.:
On the 22nd day of April, 1998, before me personally came Ronald J. Halleran to me known, who, being by me duly sworn, did depose and say that he is a Second Vice President of The Chase Manhattan Bank, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the By-Laws of said corporation, and that he signed his name thereto by like authority.
(Notarial Seal) /s/ Emily Fayan ------------------------ THIRD SUPPLEMENTAL INDENTURE |
Exhibit 4.3
CSX CORPORATION
1. Pursuant to (i) Section 301 of the Indenture dated as of August 1, 1990 between CSX Corporation (the "Corporation") and The Chase Manhattan Bank, as trustee (the "Trustee"), as supplemented by the First Supplemental Indenture dated as of June 15, 1991, the Second Supplemental Indenture dated as of May 6, 1997 and the Third Supplemental Indenture dated as of April 22, 1998 (the "Third Supplemental Indenture" and the indenture, as so supplemented, is herein called the "Indenture"), and (ii) resolutions duly adopted by the Board of Directors of the Corporation at meetings duly called and held on April 29, 1991 and July 8, 1992, the undersigned officers hereby establish a series (as that term is used in Section 301 of the Indenture) of Securities to be issued under the Indenture, which series of Securities shall have the terms set forth in the Prospectus and the Prospectus Supplement substantially in the form attached as Exhibit A (collectively, the "Prospectus") and such other or different terms as may be established by an Authorized Officer (as hereinafter defined). Terms used herein and not defined shall have the meaning assigned to them in the Indenture or the Prospectus.
2. The terms of the series of Securities shall include without limitation the terms set forth below.
TITLE: Medium-Term Notes, Series B (the "Notes").
INITIAL OFFERING
PRICE : Up to U.S. $248,000,000 (including, in the case of Foreign Currency Notes, the equivalent thereof at the Market Exchange Rate on the applicable trade dates in one or more foreign currencies or currency units); subject to the foregoing, the aggregate initial offering price of Notes to be issued and sold from time to time shall be as selected by the initial purchaser and agreed to on behalf of the Corporation by an officer of the Corporation who has been designated for such purpose in or pursuant to this Action of Authorized Pricing Officers (each, an "Authorized Officer"), as evidenced by written instructions (the "Instructions") furnished by the Corporation from time to time to the Trustee and any Security Registrar and Authenticating Agent (the "Notice Parties"). DENOMINATIONS AND FORMS: The Notes, except Foreign Currency Notes (including any permanent Global Notes representing Book-Entry Notes) will be issuable in fully registered form only in denominations of U.S. $1,000 and integral multiples of $1,000 in excess thereof. Foreign Currency Notes will be issuable only in the denominations as shall be determined by an Authorized Officer from time to time and specified to the Notice Parties in the Instructions. |
Notes may be issued in definitive or global form as may be determined by an Authorized Pricing Officer. The Notes will be issuable in permanent global form without coupons, and beneficial owners of interests in any such permanent Global Note may exchange such interests for definitive Notes in registered form, of like tenor and of an equal aggregate principal amount, only if (x) the U.S. Depositary named below (the "Depositary") notifies the Corporation that it is unwilling or unable to continue as U.S. Depositary for such permanent Global Note or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (y) the Corporation in its sole discretion determines that such permanent Global Note shall be exchangeable for definitive Notes in registered form or (z) any event shall have happened and be continuing which, after notice or lapse of time, or both, would become an Event of Default with respect to the Notes. Any permanent Global Note that is exchangeable pursuant to the preceding sentence shall be exchangeable in whole for definitive Notes in fully registered form only, of like tenor and of an equal aggregate principal amount, in denominations of U.S. $1,000 and integral multiples of U.S. $1,000 in excess thereof. Such definitive Notes shall be registered in the name or names of such person or persons as the Depositary shall instruct the Security Registrar. The Depositary for any such permanent Global Note shall be The Depository Trust Company. PAYMENT OF INTEREST: Interest on a Note will be payable to the Person in whose name such Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date next preceding the Interest Payment Date for such interest; provided, however, that interest payable on such -------- ------- Note at Maturity will be payable to the Person to whom principal shall be payable. MATURITY: The date on which the principal of each of the Notes is payable shall be any day 9 months or longer from its Issue Date, as determined by an Authorized Officer from time to time, and specified to the Notice Parties in the Instructions. INTEREST RATE OR RATES: The rate or rates, or the method of determining the rate or rates, at which any of the Notes shall bear interest shall, consistent with the options set forth in the Prospectus and this Action of Authorized Pricing Officers, shall be determined by any Authorized Officer from 2 |
time to time, and specified to the Notice Parties in the Instructions. Each Note, except a Zero Coupon Note, will bear interest from and including its Issue Date or from and including the most recent Interest Payment Date (or in the case of a Floating Rate Note with daily or weekly Interest Reset Dates, the day following the most recent Regular Record Date) with respect to which interest on such Note (or any predecessor Note) has been paid or duly provided for until the principal thereof is paid or made available for payment. Unless otherwise determined by an Authorized Officer and specified to the Notice Parties in the Instructions, the Interest Payment Dates for Fixed Rate Notes shall be March 1 and September 1 of each year. Unless otherwise determined by an Authorized Officer and specified to the Notice Parties in the Instructions, the Interest Payment Dates for Floating Rate Notes shall be as described in the sixth paragraph under the caption "Description of Notes -- Floating Rate Notes" in the Prospectus. Notwithstanding the foregoing, the first payment of interest on any Note originally issued between a Regular Record Date and an Interest Payment Date will be made on the second Interest Payment Date following the Issue Date of such Note to the registered owner on the Regular Record Date immediately preceding such Interest Payment Date. The Regular Record Date for Fixed Rate Notes having Interest Payment Dates of March 1 and September 1 shall be the February 15 or August 15, as the case may be, next preceding such March 1 and September 1 Interest Payment Dates. The Regular Record Date for Fixed Rate Notes having Interest Payment Dates of other than March 1 and September 1 and the Regular Record Dates for Floating Rate Notes shall be the dates 15 calendar days prior to such Interest Payment Dates. PLACE OF PAYMENT: The place of payment of any principal, premium and interest on Notes shall be as specified in the Prospectus unless otherwise specified by an Authorized Officer in Instructions to the Notice Parties. REDEMPTION: An Authorized Officer shall determine and specify to the Notice Parties in the Instructions either that a Note cannot be redeemed prior to its Stated Maturity or that a Note will be redeemable at the option of the Corporation and/or at the option of a Holder on or after a specified date prior to its Stated Maturity at a specified price or prices, together with accrued interest to the date of redemption. The terms and conditions, if any, upon which the Notes may be redeemed, in whole or in part, at the option of the Corporation, including without limitation, the period or periods within which, and the price or prices at which such redemption may be effected shall be 3 |
determined by an Authorized Officer from time to time and shall be specified to the Notice Parties in the Instructions. SINKING FUND: An Authorized Officer shall determine and specify to the Notice Parties in the Instructions either that the Corporation will not be obligated to redeem or purchase a Note pursuant to any sinking fund or at the option of the Holder thereof or that the Corporation will be so obligated and if so obligated the terms and conditions thereof. CURRENCY: Principal of and any premium and interest on the Notes shall be payable in U.S. dollars or in such foreign currency or currencies, or currency units, as shall be determined by an Authorized Officer from time to time and specified to the Notice Parties in the Instructions. Principal of and any premium and interest on Foreign Currency Notes will be payable by the Corporation in U.S. Dollars. Unless otherwise determined by an Authorized Officer and specified to the Notice Parties in the Instructions, the Exchange Rate Agent will obtain the quotations necessary to convert all payments of principal of and any premium and interest on Foreign Currency Notes to U.S. dollars. However, unless otherwise determined by an Authorized Officer and specified to the Notice Parties in the Instructions, the Holder of a Foreign Currency Note may elect to receive such payments in the applicable foreign currency, currencies or currency units, in which such Note is denominated, as described in and subject to the terms and conditions set forth in the Prospectus under the caption "Special Provisions Relating to Foreign Currency Notes -Payment of Principal, Premium and Interest." Payments of principal of and any premium or interest on the Notes may be determined with reference to an index (e.g., foreign currency or currencies, or a currency unit, or financial indices), and the manner in which such amounts shall be determined shall be determined by an Authorized Officer from time to time and shall be specified to the Notice Parties in the Instructions. ORIGINAL ISSUE DISCOUNT: The portion of the principal amount of any Original Issue Discount Notes or Zero Coupon Notes which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 of the Indenture shall be determined by an Authorized Officer from time to time and shall be specified to the Trustee in the Instructions. 4 |
OTHER: Article 14 of the Indenture shall apply to the Notes. Section 311 of the Indenture shall apply to the Foreign Currency Notes of this series. |
3. The form and terms of the Notes substantially in the forms of Exhibits B-1 and B-2 attached hereto and Exhibits A through F of the Indenture, with such modifications thereto as may be approved by an Authorized Officer, are hereby approved; and the Chairman of the Board, the President, any Vice President, the Managing Director - Corporate Finance and the Corporate Secretary or any Assistant Corporate Secretary of the Corporation are, and each of them with full power to act without the others hereby is, authorized, in the name and on behalf of the Corporation, to execute, manually or by facsimile signature, and in the manner provided in the Indenture, the Notes (and, in addition, to replace lost, stolen, mutilated or destroyed Notes, all as provided in the Indenture) substantially in the form approved hereby, in both temporary and definitive form, with such changes, modifications and insertions therein as the officer executing the Notes shall determine, such determination to be conclusively evidenced by the execution thereof by such officer, all in the manner and form required in, or contemplated by, the Indenture.
4. The signatures of the officers of the Corporation so authorized to execute the Notes may, but need not be, the facsimile signatures of the current or any future such authorized officers imprinted or otherwise reproduced thereon, the Corporation for such purpose hereby adopting such facsimile signatures as binding upon it, notwithstanding that at the time any Notes shall be authenticated and delivered or disposed of any officer so signing shall have ceased to be such authorized officer.
5. The form, terms and provisions of the Third Supplemental Indenture are hereby approved; and the Chairman of the Board, the President, any Vice President, the Managing Director-Corporate Finance and the Corporate Secretary or any Assistant Corporate Secretary of the Corporation are, and each of them with full power to act without the others hereby is, authorized and directed to execute and deliver, in the name and on behalf of the Corporation, the Third Supplemental Indenture approved hereby with such changes therein as the officer of the Corporation executing the Third Supplemental Indenture shall approve, the execution thereof by such officer to be conclusive evidence of such approval. The form, terms and provisions of the Indenture are hereby ratified and approved.
6. The form, terms and provisions of the Distribution Agreement dated as of April 22, 1998 between the Corporation and the Agents specified therein, providing for the issuance and sale and solicitations of sales, from time to time, of the Notes are hereby approved; and the Chairman of the Board, the President, any Vice President, the Managing Director-Corporate Finance and the Corporate Secretary or any Assistant Corporate Secretary of the Corporation are, and each of them with full power to act without the others hereby is, authorized and directed to execute and deliver, in the name and on behalf of the Corporation, the Distribution Agreement with such changes therein as the officer of the Corporation executing the Distribution Agreement shall approve, the execution
thereof by such officer to be conclusive evidence of such approval; and any one of such officers is authorized to appoint such other Agents from time to time as such officer shall deem appropriate.
7. The form, terms and provisions of the Calculation Agent Agreement, dated as of April 22, 1990 between the Corporation and the Trustee are hereby approved with such changes therein as the Officer of the Corporation executing the same shall approve the execution thereof by such Officer to be conclusive evidence of such approval; the Chairman of the Board, the President, any Vice President, the Managing Director-Corporate Finance and the Corporate Secretary or any Assistant Corporate Secretary of the Corporation are, and each of them with full power to act without the others hereby is, authorized and directed to execute and deliver, in the name and on behalf of the Corporation, such agreements.
8. The form and terms of the Prospectus are hereby approved.
9. The Chairman of the Board, the President, any Vice President, the Managing Director-Corporate Finance and the Corporate Secretary or any Assistant Corporate Secretary of the Corporation are, and each of them with full power to act without the others hereby is, authorized and empowered to take all actions, and to execute and deliver any and all documents, in the name and on behalf of this Corporation as such officer or officers shall deem necessary or appropriate to effect or otherwise carry out the foregoing.
10. Any and all actions heretofore or hereafter taken by any officer or officers of the Corporation within the terms of the foregoing, including without limitation, the filing of a registration statement and amendments, supplements and addenda thereto with the Securities and Exchange Commission with respect to the Notes and other securities which may be issued pursuant to the Indenture, are hereby ratified and confirmed as the act of the Corporation.
11. Any one of the Chairman of the Board, the President, any Vice President, the Managing Director-Corporate Finance, the Assistant Treasurer and the Corporate Secretary of the Corporation, each with power to act without the other, shall be an Authorized Officer for purposes of implementing the provisions of this Action of Authorized Pricing Officers and any Authorized Officer is hereby authorized to redelegate in writing the authority granted in this Action of Authorized Pricing Officers.
12. Notes may be authenticated by the Trustee and issued in accordance with the Administrative Procedures adopted pursuant to the Distribution Agreement upon receipt by the Trustee (including by facsimile) of an Authentication Certificate supplemental to this Action of Authorized Pricing Officers, in substantially the form attached as Exhibit C (an Authentication Certificate) setting forth the information specified or contemplated therein for the particular Notes to be authenticated and issued.
Dated as of April 22, 1998
By:__________________________________________
Name: John W. Snow
Title: President and Chief Executive Officer
By: /s/ Paul R. Goodwin ------------------------------------------ Name: Paul R. Goodwin Title: Executive Vice President-Finance and Chief Financial Officer By: /s/ Gregory R. Weber ------------------------------------------ Name: Gregory R. Weber Title: Vice President and Treasurer |
Exhibit 4.4
Registered $
No. FXR- CUSIP No.
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.
CSX CORPORATION
Medium Term Note, Series B
(Fixed Rate)
PERMANENT GLOBAL SECURITY
INTEREST PAYMENT DATES: March 1 and PRINCIPAL AMOUNT: September 1 ISSUE DATE: REGULAR RECORD DATES: February 15 and August 15 MATURITY DATE: INTEREST RATE: OTHER TERMS: REDEEMABLE AT OPTION OF: REDEMPTION DATE(S): REDEMPTION PRICE(S): ORIGINAL ISSUE DISCOUNT: DEFAULT RATE: (only applicable if Security issued ORIGINAL ISSUE DISCOUNT at original issue discount) APPLICABLE TO SHORT ACCRUAL PERIOD: YIELD TO MATURITY: SHORT ACCRUAL: PERIOD: METHOD USED TO DETERMINE YIELD TO [_] ORIGINAL ISSUE DISCOUNT MATURITY APPLICABLE TO SHORT ACCRUAL SECURITY SUBJECT TO "SPECIAL PERIOD: PROVISIONS" HEREIN [_] ORIGINAL ISSUE DISCOUNT SECURITY OID PERCENTAGE FOR TAX PURPOSES: FOR FEDERAL INCOME TAX PURPOSES ONLY OID AS PERCENTAGE OF ORIGINAL ANNUAL YIELD TO MATURITY FOR PRINCIPAL AMOUNT: COMPUTING OID: |
FOR PURPOSES OF SECTION 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS THE PERCENTAGE OF ITS PRINCIPAL AMOUNT SET FORTH ABOVE, THE YIELD TO MATURITY IS THE PERCENTAGE SET FORTH ABOVE, THE ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD IS THE PERCENTAGE OF THE PRINCIPAL AMOUNT OF THIS SECURITY SET FORTH ABOVE AND THE METHOD USED TO DETERMINE THE YIELD TO MATURITY FOR SUCH SHORT ACCRUAL PERIOD IS THE METHOD SET FORTH ABOVE.
FOR PURPOSES OF APPLYING THE ORIGINAL ISSUE DISCOUNT ("OID") PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS PERMANENT GLOBAL SECURITY IS ISSUED ON THE ORIGINAL ISSUE DATE SPECIFIED ABOVE AT THE OID PERCENTAGE FOR TAX PURPOSES SPECIFIED ABOVE (PLUS ACCRUED INTEREST, IF ANY) OF ITS PRINCIPAL AMOUNT. BASED ON THE ISSUE PRICE AND ASSUMING THAT THE RATE OF STATED INTEREST THROUGHOUT THE LIFE OF THIS PERMANENT GLOBAL SECURITY IS EQUAL TO THE RATE APPLICABLE DURING THE FIRST INTEREST ACCRUAL PERIOD, THE AMOUNT OF OID AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS PERMANENT GLOBAL SECURITY WOULD BE THE AMOUNT SPECIFIED AS SUCH ABOVE, THE ANNUAL YIELD TO MATURITY OF THIS PERMANENT GLOBAL SECURITY FOR PURPOSES OF COMPUTING THE OID WOULD BE APPROXIMATELY THE PERCENTAGE SPECIFIED AS SUCH ABOVE, AND THE TOTAL AMOUNT OF OID APPLICABLE TO THE SHORT FIRST ACCRUAL PERIOD SPECIFIED ABOVE FOR PURPOSES OF COMPUTING OID ON THIS PERMANENT GLOBAL SECURITY AS A PERCENTAGE OF THE ORIGINAL PRINCIPAL AMOUNT OF THIS PERMANENT GLOBAL SECURITY WOULD BE APPROXIMATELY THE AMOUNT SPECIFIED AS SUCH ABOVE. THE METHOD USED TO CALCULATE THE ANNUAL YIELD TO MATURITY AND THE AMOUNT OF OID ALLOCABLE TO THE SHORT FIRST ACCRUAL PERIOD IS THE METHOD SPECIFIED ABOVE.
THIS SECURITY IS A PERMANENT GLOBAL SECURITY, WITHOUT COUPONS, EXCHANGEABLE FOR ONE OR MORE DEFINITIVE REGISTERED SECURITIES OF THIS SERIES, WITHOUT COUPONS, AT THE PRINCIPAL OFFICE OF THE SECURITY REGISTRAR IN NEW YORK ONLY UNDER THE CIRCUMSTANCES DESCRIBED HEREIN. THE RIGHTS ATTACHING TO THIS PERMANENT GLOBAL SECURITY AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE REGISTERED SECURITIES OF THIS SERIES ARE AS SPECIFIED HEREIN AND IN THE INDENTURE. 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. IN ADDITION, THE DEPOSITARY MAY NOT SELL, ASSIGN, TRANSFER OR OTHERWISE CONVEY ANY BENEFICIAL INTEREST IN THIS PERMANENT GLOBAL SECURITY UNLESS SUCH BENEFICIAL INTEREST IS IN AN AMOUNT EQUAL TO AN AUTHORIZED DENOMINATION FOR SECURITIES OF SUCH SERIES, AND THE
DEPOSITARY, BY ACCEPTING THIS PERMANENT GLOBAL SECURITY, AGREES TO BE BOUND BY THE PROVISIONS HEREOF.
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS PERMANENT GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO THE PROVISIONS HEREOF.
This permanent global 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), unlimited in aggregate principal amount, issued and to be issued in one or more series under an Indenture, dated as of August 1, 1990, between the Company and The Chase Manhattan Bank, Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture (as hereinafter defined), as supplemented by a First Supplemental Indenture dated as of June 15, 1991, a Second Supplemental Indenture dated as of May 6, 1997 and a Third Supplemental Indenture dated as of April 22, 1998, to which indenture and all indentures supplemental hereto (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 permanent global Security is one of the series of Securities designated on the first page hereof, of an aggregate initial principal amount equal to the Principal Amount shown above (the "Principal Amount"), with the Interest Payment Dates, Issue Date, and the Maturity Date specified herein and bearing interest on said Principal Amount at the interest rate specified herein. The Securities of this series may be issued from time to time with varying maturities, interest rates and other terms.
The Company, for value received, hereby promises to pay to Cede & Co., as nominee for the Depositary, or registered assigns, the Principal Amount hereof on the Maturity Date shown above, and to pay interest thereon, from and including the Issue Date shown above or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, or, if the date of this permanent global Security is an Interest Payment Date to which interest has been paid or duly provided for, then from the date hereof semi-annually in arrears on each Interest Payment Date commencing on the first such Interest Payment Date next succeeding the Issue Date and at Maturity unless the Issue Date is between a Regular Record Date and an Interest Payment Date, in which case, the first payment of interest hereon shall be made on the second Interest Payment Date following such Regular Record Date, at the rate per annum set forth above, until the principal hereof is paid or duly made available for payment. 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 permanent global Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest (whether or not a Business Day), next preceding such Interest Payment Date. 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 permanent global 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 permanent global Security not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in such Indenture. Notwithstanding the foregoing, interest payable on this Security at Maturity will be payable to the person to whom principal is payable.
Unless otherwise indicated on the first page hereof, the Interest Payment Dates for this permanent global Security will be March 1 and September 1 of each year and at Maturity and the Regular Record Dates for this permanent global Security will be the February 15 or August 15, as the case may be, next preceding the March 1 and September 1 Interest Payment Dates. Unless otherwise indicated in the applicable Pricing Supplement, interest payments for Fixed Rate Notes shall be the amount of interest accrued to but excluding the relevant Interest Payment Date. Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. If any Interest Payment Date or the Maturity of falls on a day that is not a Business Day, the required payment of principal, premium, if any, or interest will be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was due, and no interest will accrue on such payment for the period from and after such Interest Payment Date or the Maturity, as the case may be, to the date of such payment on the next succeeding Business Day.
This permanent global Security is exchangeable for definitive Registered Securities of this series of like tenor and of an equal aggregate principal amount only if (x) the Depositary with respect to the Securities of this series (the "Depositary") notifies the Company that it is unwilling or unable to continue as Depositary for this permanent global Security or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and a successor depositary is not appointed by The Company within 90 days (y) the Company in its sole discretion determines that this permanent global Security shall be exchangeable for definitive Registered Securities and executes and delivers to the Trustee a Company Order providing that this permanent global 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 permanent global Security is a part. In the event this permanent global Security is exchangeable pursuant to the preceding sentence, this Security shall, in the case of clause (x) above, be exchanged in whole 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 Registered Securities 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 Securities of this series issued in exchange for this permanent global Security 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 permanent global 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 permanent global Security for one or more definitive Registered Securities of this series will be made at the New York office of the Security Registrar. Upon exchange of any portion of this Security for one or more definitive Registered Securities of this series, the Trustee shall endorse Exhibit A of this Security to reflect the reduction of its Principal Amount by an amount equal to the aggregate principal amount of the definitive Registered Securities of this series so issued in exchange, whereupon the Principal Amount hereof shall be reduced for all purposes by the amount so exchanged and noted. Except as otherwise provided herein or in the Indenture, until exchanged in full for one or more definitive Registered Securities of this series, this Security shall in all respects be subject to and entitled to the same benefits and conditions under the Indenture as a duly authenticated and delivered definitive Registered Security of this series.
Except as provided in the next paragraph, no beneficial owner of any portion of this permanent global Security shall be entitled to receive payment of accrued interest hereon until this permanent global Security has been exchanged for one or more definitive Registered Securities of this series, as provided herein and in the Indenture.
The principal and any interest in respect of any portion of this permanent global 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 permanent global 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 this permanent global 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 any portion of this permanent global Security on such Regular Record Date or Special Record Date, as the case may be.
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.
If so provided on the first page of this permanent global Security, this permanent global Security may be redeemed by the Company on the Redemption Date(s) and at the applicable Redemption Price(s) so indicated on the first page hereof. If no date on which this permanent global Security is redeemable is set forth on the first page hereof, this permanent global Security may not be redeemed prior to Maturity. On the Redemption Date(s), if any, on which this permanent global Security may be redeemed, this permanent global Security may be redeemed in whole or in part in increments of $1,000 (provided that any remaining principal amount of this permanent global Security shall be at least $1,000) at the option of the Company at the applicable Redemption Price, together with interest thereon payable to the applicable Redemption Date.
Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.
In the event of redemption of this permanent global Security in part only, a new permanent global Security or Securities of this series and of like tenor for the unredeemed portion of the Principal Amount hereof will be delivered to the Depositary upon the cancellation hereof.
Unless otherwise indicated on the first page hereof, this permanent global Security will not have a sinking fund.
If so provided on the first page of this permanent global Security, the Company may be required to repurchase the Securities of this series, in whole or in part, on the Redemption Date(s) and at the applicable Redemption Price(s) so indicated on the first page hereof, plus accrued interest, if any, to the applicable Redemption Date. On or before the applicable Redemption Date, the Company shall deposit with the Trustee money sufficient to
pay the applicable Redemption Price and any interest accrued on the such Securities to be tendered for repayment. On and after such Redemption Date, interest will cease to accrue on such Securities or any portion thereof tendered for repayment.
The repayment option may be exercised by the Holder of a Security for less than the entire principal amount of the Security, but in that event, the principal amount of the Security remaining outstanding after repayment must be in an authorized denomination. In the event of repurchase of this Security in part only, a new Security or Securities of this series and of like tenor for the unpurchased portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
In order for such Security to be repaid, the Paying Agent must receive at least 30 days but not more than 60 days prior to the Repayment Date (i) such Security with the form entitled "Option of Holder to Elect Purchase" attached to such Security duly completed or (ii) facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States setting forth the name of the Holder of such Security, the principal amount of such Security, the principal amount of such Security to be repaid, the certificate number or a description of the tenor and terms of such Security, a statement that the option to elect repayment is being exercised thereby, and a guarantee that such Security to be repaid, together with the duly completed form entitled "Option of Holder to Elect Purchase" attached to such Security, will be received by the Paying Agent not later than the fifth Business Day after the date of such facsimile transmission or letter; however, such facsimile transmission or letter shall only be effective if such Security and duly completed form are received by the Paying Agent by such fifth Business Day. Such notice, once given, will be irrevocable unless waived by the Company.
Unless otherwise indicated on the first page hereof, this permanent global Security will not be subject to redemption at the option of the Holder.
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 permanent global 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
permanent global Security and the interests represented hereby) shall terminate.
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 (voting
as one class). 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 permanent global Security shall be conclusive and binding upon such Holder and upon all future Holders of this permanent global Security and the Persons who are beneficial owners of interests represented hereby, and of any Security issued on exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this permanent global Security.
No reference herein to the Indenture and no provision of this permanent global 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 any interest on this permanent global Security at the times, places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of Registered Securities of the series of which this permanent global 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 or agency of the Company, in the Borough of Manhattan, The City of New York, 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 upon one or 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 a Registered Security (including this permanent global 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 such Security is registered as the owner thereof for all purposes, whether or not such 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 permanent global Security is a part are issuable only in registered form without coupons, in denominations of $1,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
The Securities of this series (including this permanent global Security) shall be dated the date of their authentication.
All terms used in this permanent global Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on behalf of The Chase Manhattan Bank, the Trustee under the Indenture or its successor thereunder, by the manual signature of one of its authorized officers, this permanent global Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
SPECIAL PROVISIONS
Unless otherwise indicated on the first page hereof under "Other
Terms", if this permanent global Security is an Original Issue Discount
permanent global Security subject to these Special Provisions, as indicated on
the first page hereof, the amount due and payable on this permanent global
Security in the event that the principal amount hereof is declared due and
payable prior to the Stated Maturity hereof or in the event that this permanent
global Security is redeemed shall be the Amortized Face Amount (as defined
below) of this permanent global Security or, in the case of redemption, the
specified percentage of the Amortized Face Amount of this permanent global
Security on the date such payment is due and payable as determined by the
Company, plus any accrued but unpaid "qualified stated interest" (as defined in
Section 1.1273-1 of the United States Treasury Department Regulations (the
"Treasury Regulations")).
The "Amortized Face Amount" of this permanent global Security shall be the amount equal to the sum of (i) the issue price (as defined below) of this permanent global Security and (ii) that portion of the difference between the issue price and the principal amount of this permanent global Security that has been amortized at the Stated Yield (as defined below) of this permanent global Security (computed in accordance with Section 1272(a)(4) of the Internal Revenue Code of 1986, as amended, and Section 1.1275-1(b) of the Treasury Regulations, in each case as in effect on the issue date of this permanent global Security) at the
date as of which the Amortized Face Amount is calculated, but in no event can the Amortized Face Amount exceed the principal amount of this permanent global Security due at the Stated Maturity hereof. As used in the preceding sentence, the term "issue price" means the principal amount of this permanent global Security due at the Stated Maturity hereof less the Original Issue Discount of this permanent global Security specified above. The term "Stated Yield" of this permanent global Security means the Yield to Maturity specified above for the period from the Issue Date of this permanent global Security to the Stated Maturity hereof based on the issue price and principal amount payable at the Stated Maturity hereof.
If this permanent global Security is issued with an original issue discount, in the case of a default in payment of principal upon acceleration, redemption or at Maturity hereof, in lieu of any interest otherwise payable, the overdue principal of this permanent global Security shall bear interest at a rate of interest per annum equal to the Default Rate stated above (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such acceleration, redemption or Maturity, as the case may be, to the date payment has been made or duly provided for or such default has been waived in accordance with the terms of the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporation seal.
CSX CORPORATION
[Seal] By:_______________________________________ Name:
Title:
Attest:_______________________________________ Assistant Corporate Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series issued under the Indenture described herein.
THE CHASE MANHATTAN BANK, as Trustee
Dated:_____________________ By:_______________________________________ Authorized Officer
ABBREVIATIONS
The following abbreviations, when used in the inscription above in this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT _____ Custodian _____ TEN ENT - as tenants by the (Cust) (Minor) entireties JT TEN - as joint tenants with Under Uniform Gifts to Minors Act right of survivorship and |
not as tenants in common ___________________
(State)
Additional abbreviations may also be used though not in the above list.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
the within permanent global Security and all rights thereunder, hereby irrevocably constituting and appointing ________________________________________ attorney to transfer said permanent global Security on the books of the Company with full power of substitution in the premises.
Dated: ________________ __________________________________________ NOTICE: The signature to this assignment must correspond with the name as written elsewhere upon the within instrument in every particular, without alteration or enlargement or any change whatever. |
[OPTION OF HOLDER TO ELECT PURCHASE]
If you wish to have all or a portion of this permanent global Security purchased by the Company pursuant to Article Fifteen of the Indenture, state the amount (in principal amount): $________________.
Date:
Your Signature: ________________________________________________________________
(Sign exactly as your name appears elsewhere on this Security)
Signature Guarantee: __________________________________________________________
EXHIBIT 4.5
Registered $
No. FLR- CUSIP
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.
CSX CORPORATION
Medium-Term Note, Series B
(Floating Rate)
PERMANENT GLOBAL SECURITY
ISSUE DATE: PRINCIPAL AMOUNT: INITIAL INTEREST RATE: MATURITY DATE: INDEX MATURITY: SPREAD (plus or minus): INTEREST RATE BASIS: INTEREST PAYMENT PERIOD: ____ Commercial Paper Rate ____ LIBOR SPREAD MULTIPLIER: ____ Treasury Rate ____ CD Rate INTEREST RATE RESET PERIOD: ____ Federal Funds Effective Rate ____ Prime Rate INTEREST DETERMINATION DATE(S): ____ CMT Rate CALCULATION DATES: MAXIMUM INTEREST RATE: CALCULATION AGENT: MINIMUM INTEREST RATE: INVERSE FLOATING RATE SECURITY: INTEREST RESET DATE(S): FIXED INTEREST RATE: __________% INTEREST PAYMENT DATES: DESIGNATED LIBOR PAGE: REGULAR RECORD DATES: INDEX CURRENCY: REDEEMABLE AT OPTION OF: DESIGNATED CMT TELERATE PAGE: REDEMPTION DATE(S): DESIGNATED CMT MATURITY INDEX: REDEMPTION PRICE(S): OTHER TERMS: |
THIS SECURITY IS A PERMANENT GLOBAL SECURITY, WITHOUT COUPONS, EXCHANGEABLE FOR ONE OR MORE DEFINITIVE REGISTERED SECURITIES OF THIS SERIES, WITHOUT COUPONS, AT THE PRINCIPAL OFFICE OF THE SECURITY REGISTRAR IN NEW YORK ONLY UNDER THE CIRCUMSTANCES DESCRIBED HEREIN. THE RIGHTS ATTACHING TO THIS PERMANENT GLOBAL SECURITY AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE REGISTERED SECURITIES OF THIS SERIES ARE AS SPECIFIED HEREIN AND IN THE INDENTURE. 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. IN ADDITION, THE DEPOSITARY MAY NOT SELL, ASSIGN, TRANSFER OR OTHERWISE CONVEY ANY BENEFICIAL INTEREST IN THIS PERMANENT GLOBAL SECURITY UNLESS SUCH BENEFICIAL INTEREST IS IN AN AMOUNT EQUAL TO AN AUTHORIZED DENOMINATION FOR SECURITIES OF SUCH SERIES, AND THE DEPOSITARY, BY ACCEPTING THIS PERMANENT GLOBAL SECURITY, AGREES TO BE BOUND BY THE PROVISIONS HEREOF.
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS PERMANENT GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO THE PROVISIONS HEREOF.
This permanent global 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), unlimited in aggregate principal amount, issued and to be issued in one or more series under an Indenture, dated as of August 1, 1990, between the Company and The Chase Manhattan Bank, Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture (as hereinafter defined)), as supplemented by a First Supplemental Indenture dated as of June 15, 1991, a Second Supplemental Indenture dated as of May 6, 1997 and a Third Supplemental Indenture dated as of April 22, 1998, to which indenture and all indentures supplemental hereto (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 permanent global Security is one of the series of Securities designated on the first page hereof, of an aggregate initial principal amount equal to the Principal Amount shown above (the "Principal Amount"), with the Interest Payment Dates, Issue Date, and Maturity Date specified herein and bearing interest on said Principal Amount at the interest rate specified herein. The Securities of this series may be issued from time to time with varying maturities, interest rates and other terms.
The Company, for value received, hereby promises to pay to Cede & Co., as nominee for the Depositary, or registered assigns, the Principal Amount hereof on the Maturity Date shown above, and to pay interest thereon, from the Issue Date shown above or from the most recent Interest Payment Date to which interest has been paid or duly provided for,
case of a LIBOR Note, if such Market Day is in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Market Day. "Initial Interest Rate" means the rate at which this Security will bear interest from its Issue Date to the first Interest Reset Date, as indicated on the first page hereof.
If this Security is designated on the first page hereof as an "Inverse Floating Rate Security", then, unless otherwise described herein, this Security will bear interest at a floating interest rate equal to the Fixed Interest Rate indicated on the first page hereof minus the rate determined by reference to the applicable Interest Rate Basis specified on the first page hereof (a) plus or minus the applicable Spread, if any, and/or (b) multiplied by the applicable Spread Multiplier, if any; provided, however, that, unless otherwise specified on the first page hereof, the interest rate hereon will not be less than zero.
If the Interest Rate Basis specified on the first page hereof is the Commercial Paper Rate, the interest rate with respect to this Security for any Interest Reset Date shall be the Commercial Paper Rate plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified on the first page hereof, as determined on the applicable Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage) calculated in accordance with the following formula:
where "D" refers to the per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal; and "M" refers to the actual number of days in the interest period for which interest is being calculated.
"Composite Quotations" means the daily statistical release entitled "Composite 3:30 P.M. Quotations for U.S. Government Securities", or any successor publication, published by the Federal Reserve Bank of New York. "Index Maturity" means, with respect to this Security, the period to maturity of the instrument or obligation on which the interest rate index is based, as indicated on the first page hereof. "H.15(519)" means the weekly statistical release entitled "Statistical Release H.15(519), Selected Interest Rates", or any successor publication, published by the Board of Governors of the Federal Reserve System.
If the Interest Rate Basis specified on the first page hereof is LIBOR, the interest rate with respect to this Security for any Interest Reset Date shall be LIBOR plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified on the first page hereof, as determined on the applicable Interest Determination Date.
LIBOR means the rate determined by the Calculation Agent in accordance with the following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will
be either: (a) if "LIBOR Reuters" is specified on the first page hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page by
its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Index Currency having the Index Maturity
specified in such Pricing Supplement, commencing on the applicable Interest
Reset Date, that appear (or, if only a single rate is required as aforesaid,
appears) on the Designated LIBOR Page as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date, or (b) if "LIBOR Telerate" is specified
in the applicable Pricing Supplement or if neither "LIBOR Reuters" nor
"LIBOR Telerate" is specified on the first page hereof as the method for
calculating LIBOR, the rate for deposits in the Index Currency having the
Index Maturity specified on the first page hereof, commencing on such
Interest Reset Date, that appears on the Designated LIBOR Page as of 11:00
A.M., London time, on such LIBOR Interest Determination Date. If fewer than
two such offered rates appear, or if no such rate appears, as applicable,
LIBOR on such LIBOR Interest Determination Date will be determined in
accordance with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer than two offered rates appear, or no rate appears, as the case may be, on the Designated LIBOR Page as specified in clause (i) above, the Calculation Agent will request the principal London offices of each of four major reference banks in the London interbank market, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for deposits in the Index Currency for the period of the Index Maturity specified on the first page hereof, commencing on the applicable Interest Reset Date, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date and in a principal amount that is representative for a single transaction in such Index Currency in such market at such time. If at least two quotations are so provided, then LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean of such quotations. If fewer than two such quotations are so provided, then LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in the applicable Principal Financial Center, on such LIBOR Interest Determination Date by three major banks in such Principal Financial Center selected by the Calculation Agent for loans in the Index Currency to leading European banks, having the Index Maturity specified in the applicable Pricing Supplement and in a principal amount that is representative for a single transaction in such Index Currency in such market at such time; provided, however, that if the banks so selected by the Calculation Agent are not quoting as mentioned in this sentence, LIBOR determined as of such LIBOR Interest Determination Date will be LIBOR in effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency or composite currency specified on the first page hereof as to which LIBOR shall be calculated. If no such currency or composite currency is specified in the applicable Pricing Supplement, the Index Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the first page hereof, the display on the Reuter Monitor Money Rates Service (or any successor service) on the page specified on the first page hereof (or any other page as may replace such page or such service (or any successor service)) for the purpose of displaying the London interbank rates of major banks for the applicable Index Currency, or (b) if "LIBOR Telerate" is specified on the first page hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the first page hereof as the method for calculating LIBOR, the display on Dow Jones Markets Limited (or any successor service) on page 3750 if the U.S. dollar is the Index Currency or with respect to any other Index Currency, on the page specified in such Pricing Supplement (or any other page as may replace such page or such service (or any successor service)) for the purpose of displaying the London interbank rates of major banks for the applicable Index Currency.
If the Interest Rate Basis specified on the first page hereof is the Treasury Rate, the interest rate with respect to this Security for any Interest Reset Date shall be the Treasury Rate plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified on the first page hereof, as determined on the applicable Interest Determination Date.
If the Interest Rate Basis specified on the first page hereof is the CD Rate, the interest rate with respect to this Security shall be the CD Rate plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified on the first page hereof, as determined on the applicable Interest Determination Date.
"CD Rate" means, with respect to any CD Interest Determination Date, the rate on such date for negotiable U.S. dollar certificates of deposit having the Index Maturity specified on the first page hereof as published in H.15(519) under the heading "CDs (Secondary Market)." If such rate is not so published by 3:00 P.M., New York City time, on the related Calculation Date, then the CD Rate will be the rate on such CD Interest Determination Date for negotiable U.S. dollar certificates of deposit having the Index Maturity specified on the first page hereof as published in Composite Quotations under the heading "Certificates of Deposit." If such rate is not published in H.15(519) or in Composite Quotations by 3:00 P.M., New York City time, on the related Calculation Date, then the CD Rate for such CD Interest Determination Date will be calculated by the Calculation Agent and will be the arithmetic mean of the secondary market
If the Interest Rate Basis specified on the first page hereof is the Federal Funds Effective Rate, the interest rate with respect to this Security for any Interest Reset Date shall be the Federal Funds Effective Rate plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified on the first page hereof, as determined on the applicable Interest Determination Date.
If the Interest Rate Basis specified on the first page hereof is the Prime Rate, the interest rate with respect to this Security for any Interest Reset Date shall be the Prime Rate plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified on the first page hereof, as determined on the applicable Interest Determination Date.
"Prime Rate" means, with respect to any Prime Interest Determination Date, the rate set forth on such date in H.15(519) under the heading "Bank Prime Loan." If such rate is
"Reuters Screen USPRIME1 Page" means the display designated as page "USPRIME1" on the Reuter Monitor Money Rates Service (or any successor service) or such other page as may replace the USPRIME1 Page on the Reuter Monitor Money Rates Service (or any successor service) for the purpose of displaying prime rates or base lending rates of major United States banks.
If the Interest Rate Basis specified on the first page hereof is the CMT Rate, the interest rate with respect to this Security for any Interest Reset Date shall be the CMT Rate plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified on the first page hereof, as determined on the applicable Interest Determination Date.
Unless otherwise specified on the first page hereof, "CMT Rate" means, with respect to any CMT Rate Interest Determination Date, the rate displayed on the Designated CMT Telerate Page under the caption " . . . Treasury Constant Maturities . . . Federal Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly average, as specified on the first page hereof, for the week or the month, as applicable, ended immediately preceding the week or month, as applicable, in which the related
CMT Rate Interest Determination Date occurs. If such rate is no longer displayed on the relevant page or is not displayed by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate for such CMT Rate Interest Determination Date will be such treasury constant maturity rate for the Designated CMT Maturity Index as published in the relevant H.15(519). If such rate is no longer published or is not published by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate on such CMT Rate Interest Determination Date will be such treasury constant maturity rate for the Designated CMT Maturity Index (or other United States Treasury rate for the Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with respect to such Interest Reset Date as may then be published by either the Board of Governors of the Federal Reserve System or the United States Department of the Treasury that the Calculation Agent determines to be comparable to the rate formerly displayed on the Designated CMT Telerate Page and published in the relevant H.15(519). If such information is not provided by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT Rate on the CMT Rate Interest Determination Date will be calculated by the Calculation Agent and will be a yield to maturity, based on the arithmetic mean of the secondary market closing offer side prices as of approximately 3:30 P.M., New York City time, on such CMT Rate Interest Determination Date reported, according to their written records, by three Reference Dealers in The City of New York selected by the Calculation Agent (from five such Reference Dealers selected by the Calculation Agent and eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest)), for the most recently issued direct noncallable fixed rate obligations of the United States ("Treasury Notes") with an original maturity of approximately the Designated CMT Maturity Index and a remaining term to maturity of not less than such Designated CMT Maturity Index minus one year. If the Calculation Agent is unable to obtain three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest Determination Date will be calculated by the Calculation Agent and will be a yield to maturity based on the arithmetic mean of the secondary market offer side prices as of approximately 3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of three Reference Dealers in The City of New York (from five such Reference Dealers selected by the Calculation Agent and eliminating the highest quotation (or, in the event of equality, one of the highest) and the lowest quotation (or, in the event of equality, one of the lowest)), for Treasury Notes with an original maturity of the number of years that is the next highest to the Designated CMT Maturity Index and a remaining maturity closest to the Index Maturity specified on the first page hereof and in an amount that is representative for a single transaction in that market at that time. If three or four (and not five) of such Reference Dealers are quoting as described above, then the CMT Rate will be based on the arithmetic mean of the offer prices obtained and neither the highest nor the lowest of such quotes will be eliminated; provided, however, that if fewer than three Reference Dealers so selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate Interest Determination Date. If two Treasury Notes with an original maturity as described in the second preceding sentence have remaining terms to maturity equally close to the Designated CMT Maturity Index, the Calculation Agent will obtain quotations for the Treasury Note with the shorter remaining term to maturity and will use such quotations to calculate the CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on Dow Jones Markets Limited (or any successor service) on the page specified on the first page hereof (or any other page as may replace such page on that service (or any successor service) for the purpose of displaying Treasury Constant Maturities as reported in H.15(519)) for the purpose of displaying Treasury Constant Maturities as reported in H.15(519). If no such page is specified on the first page hereof, the Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of the U.S. Treasury securities (either one, two, three, five, seven, 10, 20 or 30 years) specified on the first page hereof with respect to which the CMT Rate will be calculated. If no such maturity is specified on the first page hereof, the Designated CMT Maturity Index shall be two years.
The Interest Determination Date pertaining to an Interest Reset Date for (a) a Commercial Paper Rate Security (the "Commercial Paper Interest Determination Date"), (b) a CD Rate Security (the "CD Interest Determination Date"), (c) a Federal Funds Rate Security (the "Federal Funds Interest Determination Date"), (d) a Prime Rate Security (the "Prime Interest Determination Date") or (e) a CMT Rate Security (the "CMT Rate Interest Determination Date") will be the second Market Day preceding the Interest Reset Date with respect to such Security. The Interest Determination Date pertaining to an Interest Reset Date for a LIBOR Security (the "LIBOR Interest Determination Date") will be the second London Market Day (as defined below) preceding such Interest Reset Date. The Interest Determination Date pertaining to an Interest Reset Date for a Treasury Rate Note (the "Treasury Interest Determination Date") will be the day of the week in which such Interest Reset Date falls on which Treasury bills would normally be auctioned. Treasury bills are usually sold at auction on Monday of each week, unless that day is a legal holiday, in which case the auction is usually held on the following Tuesday, except that such auction may be held on the preceding Friday. If, as the result of a legal holiday, an auction is so held on the preceding Friday, such Friday will be the Treasury Interest Determination Date pertaining to the Interest Reset Date occurring in the next succeeding week. If an auction date shall fall on any Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date shall instead be the first Market Day immediately following such auction date.
"Calculation Date", where applicable, means the date by which the Calculation Agent is to calculate the interest rate for this Security which shall be the earlier of (i) the tenth calendar day after the related Interest Determination Date, or if any such day is not a Market
Day, the next succeeding Market Day and (ii) the Market Day preceding the applicable Interest Payment Date or Maturity, as the case may be.
Upon the request of the Holder hereof, the Calculation Agent will provide the interest rate then in effect, and, if then determined, the interest rate which will become effective as a result of a determination made for the next succeeding Interest Reset Date with respect to this Security. The "Calculation Agent" means the agent appointed by the Company to calculate interest rates under the circumstances specified above. Unless otherwise provided on the first page hereof, the Calculation Agent will be The Chase Manhattan Bank.
Notwithstanding the foregoing, the interest rate hereon shall not be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any, shown on the first page hereof. In addition, the interest rate hereon shall in no event be higher than the maximum rate permitted by New York law, as the same may be modified by United States law of general application.
Unless otherwise indicated on the first page hereof and except as provided below, the Interest Payment Dates for this Security will be, if the rate of interest on this Security resets daily, weekly or resets monthly, the third Wednesday of each month or the third Wednesday of March, June, September and December of each year (as indicated on the first page hereof); if the rate of interest on this Security resets quarterly, the third Wednesday of March, June, September and December of each year; if the rate of interest on this Security resets semi-annually, the third Wednesday of the two months of each year that are six months apart specified on the first page hereof; and if the rate of interest on this Security resets annually, the third Wednesday of the month specified on the first page hereof, and in each case, at Maturity. If an Interest Payment Date specified on the first page hereof would otherwise be a day that is not a Market Day, such Interest Payment Date will be the next succeeding Market Day, except that in the case of a LIBOR Security, if such day is in the next succeeding calendar month, such Interest Payment Date will be the immediately preceding Market Day. "Market Day" means (a) with respect to any Security, any day that is not a Saturday or Sunday and that, in The City of New York, is not a day on which banking institutions generally are authorized or obligated by law or executive order to close, (b) with respect to LIBOR Securities only, any such day on which dealings in deposits in U.S. dollars are transacted in the London interbank market (a "London Market Day"), and (c) with respect to Foreign Currency Securities only, any day that is not a Saturday or Sunday and that, in the Principal Financial Center (as defined below) of the country of the Specified Currency or, with respect to Foreign Currency Securities denominated in European Currency Units, Brussels, is not a day on which banking institutions generally are authorized or obligated by law to close. "Principal Financial Center" means (i) the capital city of the country issuing the Specified Currency (except as described above with respect to European Currency Units) or (ii) the capital city of the country to which the Designated LIBOR Currency relates (or, in the case of European Currency Units, Luxemburg), as applicable, except, in the case of (i) or (ii) above, that with respect to U.S. dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Italian lire and Swiss francs, the "Principal Financial Center" shall be The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, Milan (solely in the case of the
Specified Currency) and Zurich, respectively. If the Maturity of this Security falls on a day that is not a Market Day, the required payment of principal, premium, if any, and interest will be made on the next succeeding Market Day with the same force and effect as if made on the date such payment was due, and no interest will accrue on such payment for the period from and after the Maturity to the date of such payment on the next succeeding Market Day.
Accrued interest hereon from the Issue Date shown above or from the last date to which interest has been paid or duly provided for is calculated by multiplying the first page amount hereof by an accrued interest factor. Such accrued interest factor is computed by adding the interest factor calculated for each day from the Issue Date or from the last date to which interest has been paid or duly provided for, as the case may be, to the date for which accrued interest is being calculated. The interest factor for each such day is computed by dividing the interest rate applicable to such date by 360, in the case of Commercial Paper Rate Securities, LIBOR Securities, CD Rate Securities, Federal Funds Rate Securities and Prime Rate Securities, or by the actual number of days in the year, in the case of Treasury Rate Securities and CMT Rate Securities.
This permanent global Security is exchangeable for definitive Registered Securities of this series of like tenor and of an equal aggregate principal amount only if (x) the Depositary with respect to the Securities of this series (the "Depositary") notifies the Company that it is unwilling or unable to continue as Depositary for this permanent global Security or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and a successor depositary is not appointed by the Company within 90 days (y) the Company in its sole discretion determines that this permanent global Security shall be exchangeable for definitive Registered Securities and executes and delivers to the Trustee a Company Order providing that this permanent global 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 permanent global Security is a part. If this permanent global Security is exchangeable pursuant to the preceding sentence, this Security shall in the case of clause (x) above be exchanged in whole 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 Registered Securities 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 permanent global 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 Securities of this series issued in exchange for this permanent global Security 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 permanent global 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 permanent global Security for one or more definitive Registered Securities of this series will be made at the New York office of the Security Registrar. Upon exchange of any portion of this Security for one or more definitive Registered Securities of this series, the Trustee shall endorse Exhibit A of this Security to reflect the reduction of its Principal Amount by an amount equal to the aggregate principal amount of the definitive Registered Securities of this series so issued in exchange, whereupon the Principal Amount hereof shall be reduced for all purposes by the amount so exchanged and noted. Except as otherwise provided herein or in the Indenture, until exchanged in full for one or more definitive Registered Securities of this series, this Security shall in all respects be subject to and entitled to the same benefits and conditions under the Indenture as a duly authenticated and delivered definitive Registered Security of this series.
Except as provided in the next paragraph, no beneficial owner of any portion of this permanent global Security shall be entitled to receive payment of accrued interest hereon until this permanent global Security has been exchanged for one or more definitive Registered Securities of this series, as provided herein and in the Indenture.
The principal and any interest in respect of any portion of this permanent global 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 permanent global 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 this permanent global 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 any portion of this permanent global Security on such Regular Record Date or Special Record Date, as the case may be.
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.
If so provided on the first page of this permanent global Security, this permanent global Security may be redeemed by the Company on the Redemption Date(s) and at the applicable Redemption Price(s) so indicated on the first page hereof. If no date on which this permanent global Security is redeemable is set forth on the first page hereof, this permanent global Security may not be redeemed prior to Maturity. On the Redemption Date(s), if any, on which this permanent global Security may be redeemed, this permanent global Security may be redeemed in whole or in part in increments of $1,000 (provided that any remaining principal amount of this permanent global Security shall be at least $1,000) at the option of the Company at the applicable Redemption Price(s), together with interest thereon payable to the Redemption Date(s).
Notice of redemption will be given by mail to Holders of Securities, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.
In the event of redemption of this permanent global Security in part only, a new permanent global Security or Securities of this series and of like tenor for the unredeemed portion of the Principal Amount hereof will be delivered to the Depositary upon the cancellation hereof.
Unless otherwise indicated on the first page hereof, this permanent global Security will not have a sinking fund.
If so provided on the first page of this permanent global Security, the Company may be required to repurchase this permanent global Security at the option of the Holder, in
whole or in part, on the Redemption Date(s) and at the applicable Redemption Price(s) so indicated on the first page hereof, plus accrued interest, if any, to the applicable Redemption Date. On or before the applicable Redemption Date, the Company shall deposit with the Trustee money sufficient to pay the applicable Redemption Price and any interest accrued on the portion of this permanent global Security to be tendered for repayment. On and after such Redemption Date, interest will cease to accrue on this permanent global Security or any portion hereof tendered for repayment.
The repayment option may be exercised by the Holder of this permanent global Security for less than the entire principal amount hereof, but in that event, the principal amount hereof remaining outstanding after repayment must be in an authorized denomination. In the event of repurchase of this permanent global Security in part only, a new Security or Securities of this series and of like tenor for the unpurchased portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
In order for this permanent global Security to be repaid, the Paying Agent must receive at least 30 days but not more than 60 days prior to the Repayment Date (i) this permanent global Security with the form entitled "Option of Holder to Elect Purchase" attached to this permanent global Security duly completed or (ii) facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States setting forth the name of the Holder of this permanent global Security, the principal amount of this permanent global Security, the principal amount of this permanent global Security to be repaid, the certificate number or a description of the tenor and terms of this permanent global Security, a statement that the option to elect repayment is being exercised thereby, and a guarantee that this permanent global Security to be repaid, together with the duly completed form entitled "Option of Holder to Elect Purchase" attached to this Security, will be received by the Paying Agent not later than the fifth Business Day after the date of such facsimile transmission or letter; however, such facsimile transmission or letter shall only be effective if this permanent global Security and duly completed form are received by the Paying Agent by such fifth Business Day. Such notice, once given, will be irrevocable unless waived by the Company.
Unless otherwise indicated on the first page hereof, this permanent global Security will not be subject to redemption at the option of the Holder.
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 permanent global 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
permanent global Security and the interests represented hereby) shall terminate.
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 (voting as one class). 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 permanent global Security shall be conclusive and binding upon such Holder and upon all future Holders of this permanent global 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 permanent global Security.
No reference herein to the Indenture and no provision of this permanent global 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 any interest on this permanent global Security at the times, places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of Registered Securities of the series of which this permanent global 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 or agency of the Company in the Borough of Manhattan, The City of New York, 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 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 a Registered Security (including this permanent global 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 such Security is registered as the owner thereof for all purposes, whether or not such 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 permanent global Security is a part are issuable only in registered form without coupons, in denominations of $1,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
The Securities of this series (including this permanent global Security) shall be dated the date of their authentication.
All terms used in this permanent global Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on behalf of The Chase Manhattan Bank, the Trustee under the Indenture or its successor thereunder, by the manual signature of one of its authorized officers, this permanent global 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 corporation seal.
CSX CORPORATION
[Seal]
By:_______________________________________
Name:
Title:
Attest:_______________________________________ Assistant Corporate Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series issued under the Indenture described herein.
THE CHASE MANHATTAN BANK, as Trustee
Dated:_____________________ By:_______________________________________ Authorized Officer
ABBREVIATIONS
The following abbreviations, when used in the inscription above in this instrument shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM- as tenants in common UNIF GIFT MIN ACT _______Custodian TEN ENT- as tenants by the ______ entireties (Cust) (Minor) JT TEN- as joint tenants with Under Uniform Gifts to Minors Act right of survivorship and not as tenants in common _____________________ (State) |
Additional abbreviations may also be used though not in the above list.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
attorney to transfer said permanent global Security on the books of the Company with full power of substitution in the premises.
Dated: _________ __________________________________________ NOTICE: The signature to this assignment must correspond with the name as written elsewhere upon the within instrument in every particular, without alteration or enlargement or any change whatever. |
[OPTION OF HOLDER TO ELECT PURCHASE]
If you wish to have all or a portion of this permanent global Security purchased by the Company pursuant to Article Fifteen of the Indenture, state the amount (in principal amount): $________________.
Date:
Your Signature: ________________________________________________________________
(Sign exactly as your name appears elsewhere on this Security)
Signature Guarantee: _______________________________________
EXHIBIT 12.1
CSX CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(MILLIONS OF DOLLARS)
FOR THE FISCAL YEARS ENDED ---------------------------------------------------------------------------- DEC. 26, DEC. 27, DEC. 29, DEC. 30, DEC. 31, 1997 1996 1995 1994 1993 ------------ ------------ ------------ ------------ ------------ EARNINGS: Earnings Before Income Taxes $1,183 $1,316 $974 $1,006 $633 Interest Expense 451 249 270 281 298 Amortization of Debt Discount 4 2 2 3 1 Interest Portion of Fixed Rent 197 189 184 206 206 Undistributed (Earnings) Loss of Affiliates Accounted for Using the Equity Method (150) (6) 3 10 7 Minority Interest 41 42 32 21 14 ------------ ------------ ------------ ------------ ------------ Earnings, as Adjusted $1,726 $1,792 $1,465 $1,527 $1,159 ============ ============ ============ ============ ============ FIXED CHARGES: Interest Expense 451 249 270 281 298 Capitalized Interest 3 5 6 9 6 Amortization of Debt Discount 4 2 2 3 1 Interest Portion of Fixed Rent 197 189 184 206 206 ------------ ------------ ------------ ------------ ------------ Fixed Charges $655 $445 $462 $499 $511 ============ ============ ============ ============ ============ Ratio of Earnings to Fixed Charges 2.6x 4.0x 3.2x 3.1x 2.3x ============ ============ ============ ============ ============ |