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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
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): MAY 7, 1999
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CSX CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
VIRGINIA
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(STATE OR OTHER JURISDICTION OF
INCORPORATION OR ORGANIZATION)
2-63273 62-1051971
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(COMMISSION (I.R.S. EMPLOYER
FILE NO.) IDENTIFICATION NO.)
ONE JAMES CENTER, 901 EAST CARY STREET, RICHMOND, VA 23219
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(804) 782-1400
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ITEM 5. OTHER EVENTS
On May 7, 1999, CSX Corporation (the "Company") entered into a
Distribution Agreement (the "Distribution Agreement") with Chase Securities
Inc., Credit Suisse First Boston Corporation, Goldman, Sachs & Co., Lehman
Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC and Salomon
Smith Barney Inc. (collectively, the "Agents") with respect to the issue and
sale by the Company of its Medium-Term Notes, Series C, due nine months or
longer from date of issue (the "Series C Notes"). The Series C Notes were
originally established with an aggregate initial offering price of up to U.S.
$750,000,000. As of May 7, 1999, the Company had issued $350,000,000 in
aggregate initial offering price of the Series C Notes. The Company has
authorized the issuance and sale of up to U.S. $400,000,000 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 the Series
C Notes (the "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 May 7, 1999. 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 offering and sale of the Notes have been
registered under the Securities Act of 1933, as amended (the "Act"), by a
Registration Statement on Form S-3 (Registration No. 333-68885) which was
declared effective January 5, 1999. On May 11, 1999, the Company filed with the
Securities and Exchange Commission (the "Commission"), pursuant to Rule
424(b)(5) under the Act, its Prospectus, dated January 5, 1999, and Prospectus
Supplement, dated May 7, 1999, pertaining to the offering and sale of the Notes.
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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 May 7, 1999, among the Company
and the Agents.
4.1 Action of Authorized Pricing Officers dated as of May 7,
1999.
4.2 Form of Fixed Rate Note.
4.3 Form of Floating Rate Note.
5.1 Opinion of McGuire, Woods, Battle & Boothe LLP as to the
validity of the Notes.
23.1 Consent of McGuire, Woods, Battle & Boothe LLP contained in
the opinion filed as Exhibit 5.1 hereto.
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Signature
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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
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Gregory R. Weber
Vice President and Treasurer
Date: May 11, 1999
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EXHIBIT LIST
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Exhibit Description
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1.1 Distribution Agreement, dated May 7, 1999, among the Company and the
Agents.
4.1 Action of Authorized Pricing Officers dated as of May 7, 1999.
4.2 Form of Fixed Rate Note.
4.3 Form of Floating Rate Note.
5.1 Opinion of McGuire, Woods, Battle & Boothe LLP as to the validity of
the Notes.
23.1 Consent of McGuire, Woods, Battle & Boothe LLP contained in the
opinion filed as Exhibit 5.1 hereto.
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EXHIBIT 1.1
CSX Corporation
Medium-Term Notes Series C
Due Nine Months or Longer from Date of Issue
DISTRIBUTION AGREEMENT
May 7, 1999
Chase Securities Inc.
270 Park Ave.
New York, NY 10017
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, Pierce, Fenner & Smith Incorporated
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 Smith Barney Inc.
Seven World Trade Center
New York, NY 10048
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2
Ladies and Gentlemen:
CSX Corporation, a Virginia corporation (the "Company"), confirms its
agreement with Chase Securities Inc., Credit Suisse First Boston Corporation,
Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Morgan Stanley & Co. Incorporated, NationsBanc Montgomery
Securities LLC and Salomon Smith Barney Inc. (the "Agents") with respect to the
issue and sale by the Company of its Medium-Term Notes Series C 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"). On September 30, 1998, the Company authorized the issuance and
sale of up to U.S. $750,000,000 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. As of the date
hereof, the Company has issued and sold $350,000,000 aggregate initial offering
price of Notes pursuant to the terms of a Distribution Agreement dated September
30, 1998. Accordingly, Notes with an aggregate initial offering price of up to
$400,000,000 may be issued and sold through the Agents pursuant to 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. 333-68885) on Form S-3 for the registration
of debt securities, including the Notes, preferred stock, depositary shares,
common stock and securities 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 statement has 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 statement
(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
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3
exhibit) and the prospectus constituting a part of such registration statement,
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.
SECTION 1. Appointment as Agents.
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(a) Appointment of Agents. Subject to the terms and conditions stated
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herein, and subject to the reservation by the Company of the right to sell Notes
directly to investors, and to solicit and accept offers to purchase Notes
directly from investors from time to time on its own behalf, the Company hereby
appoints the Agents as the exclusive agents for the purpose of soliciting
purchases of the Notes from the Company by others and agrees that whenever the
Company determines to sell Notes directly to an Agent as principal for resale to
others, it will enter into a Terms Agreement (hereafter defined) relating to
such sale in accordance with the provisions of Section 3(b) hereof. The Agents
are not authorized to appoint sub-agents or to engage the services of any other
broker or dealer in connection with the offer or sale of the Notes. The Company
agrees that, during the period the Agents are acting as the Company's agents
hereunder, the Company will not appoint other agents to act on its behalf, or to
assist it, in the placement of the Notes.
(b) Best Efforts Solicitations; Right to Reject Offers. Upon receipt
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of instructions from the Company, each Agent will use its best efforts to
solicit purchases of such principal amount of the Notes as the Company and such
Agent shall agree upon from time to time during the term of this Agreement, it
being understood that the Company shall not approve the solicitation of
purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time. Each Agent will communicate to the Company, orally
or in writing, each offer to purchase Notes, other than those offers rejected by
such Agent. An Agent shall have the right, in its discretion reasonably
exercised, to reject any proposed purchase of Notes made to it, as a whole or in
part, and any such rejection shall not be deemed a breach of such Agent's
agreement contained herein. The Company may accept or reject any proposed
purchase of the Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. In soliciting
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purchases of the Notes on behalf of the Company, each Agent shall act solely as
agent for the Company and not as principal. Each Agent shall make reasonable
efforts to assist the Company in obtaining
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4
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company. No Agent shall have any liability to
the Company if any such purchase is not consummated for any reason. No Agent
shall have any obligation to purchase Notes from the Company as principal, but
an Agent may agree from time to time to purchase Notes as principal. Any such
purchase of Notes by an Agent as principal shall be made pursuant to a Terms
Agreement in accordance with Section 3(b) hereof.
(d) Delayed Delivery Contracts. The Company authorizes the Agents to
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solicit offers to purchase Notes pursuant to delayed delivery contracts (the
"Contract Notes") substantially in the form of Exhibit D attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company may
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. Upon
execution of a Delayed Delivery Contract by the Company, the Company will pay
the Agent which arranged such contract as compensation the fee set forth in
Schedule A hereto in respect of the principal amount of Contract Notes purchased
as a result of solicitations made by such Agent. The Company will make Delayed
Delivery Contracts in all cases where sales of Contract Notes arranged by the
Agents have been approved by the Company. The Agents will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts.
(e) Reliance. The Company and the Agents agree that any Notes the
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placement of which an Agent arranges shall be placed by such Agent, and any
Notes purchased by an Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) Representations and Warranties. The Company represents and
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warrants to each Agent as of the date hereof, as of the date of each acceptance
by the Company of an offer for the purchase of Notes (whether through such Agent
as agent or to such Agent as principal), as of the date of each delivery of
Notes (whether through such Agent as agent or to an Agent as principal) (the
date of each such delivery to an Agent as principal being hereafter referred to
as a "Settlement Date"), and as of the times referred to in Section 7(b) hereof
(each a "Representation Date") as follows:
(i) Registration Statement and Prospectus. At the time the
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Registration Statement became effective, the Registration Statement
complied, and as of each Representation Date will comply, in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the 1939 Act and the rules and regulations
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5
of the SEC promulgated thereunder. The Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any
amendment to the Registration Statement becomes effective and any Annual
Report on Form l0-K is filed by the Company with the SEC and as of each
Representation Date will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. 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").
(ii) Incorporated Documents. The documents incorporated by
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reference in the Prospectus, at the time they were or hereafter are filed
with the SEC, complied or when so filed will comply, as the case may be, in
all material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations"), and,
when read together and with the other information in the Prospectus, did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(iii) Material Changes. Since the respective dates as of which
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information is given in the Registration Statement and Prospectus, except
as may otherwise be stated therein or contemplated thereby, there has been
no material adverse change in the condition, financial or otherwise, or in
the earnings, business or properties of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business.
(iv) Ratings. The Medium-Term Note Program under which the Notes
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are issued (the "Program"), as well as the Notes, are rated BBB by Standard
& Poor's Ratings Services, or such other rating as to which the Company
shall have most recently notified the Agents pursuant to Section 4(a)
hereof.
(b) Additional Certifications. Any certificate signed by any officer
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of the Company and delivered to an Agent or to counsel for the Agents in
connection with an
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6
offering of Notes or the sale of Notes to an Agent as principal shall be deemed
a representation and warranty by the Company to such Agent as to the matters
covered thereby on the date of such certificate and at each Representation Date
subsequent thereto.
SECTION 3. Solicitations as Agent; Purchases as Principal.
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(a) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Company, to use its best efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus.
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.
(b) Purchases as Principal. Each sale of Notes to an Agent as
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principal shall be made in accordance with the terms contained herein and
pursuant to a separate agreement which will provide for the sale of such Notes
to, and the purchase and reoffering thereof by, such Agent. Each such separate
agreement (which may be an oral agreement and confirmed in writing as described
below between the relevant Agent and the Company) is herein referred to as a
"Terms Agreement". Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall, as between the Company and the
Agent that is party to a Terms Agreement, be deemed to include any applicable
Terms Agreement between the
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7
Company and such Agent. Each such Terms Agreement, whether oral (and confirmed
in writing, which may be by facsimile transmission sent by the Company to the
applicable Agent) or in writing, shall be with respect to such information (as
applicable) as is specified in Exhibit A hereto. An Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the 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.
(c) Administrative Procedures. Administrative procedures with
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respect to the sale of Notes shall be agreed upon from time to time by the
Agents and the Company (the "Procedures"). The Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. Covenants of the Company
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The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents as
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soon as reasonably practicable (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the SEC for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus and (iii) of the
receipt of any comments from the SEC with respect to the Registration Statement
or the Prospectus. The Company will notify the Agents immediately of (x) any
request by the SEC for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (y) the
issuance by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose and
(z) any change in the rating assigned by any nationally recognized statistical
rating organization to the Program or any debt securities (including the Notes)
of the Company, or the public announcement by any nationally recognized
statistical rating organization that is has under surveillance or review, with
possible negative implications, its rating of the Program or any such debt
securities, or the withdrawal by any nationally recognized statistical rating
organization of its rating of the Program or any such debt securities. The
Company will make every reasonable effort to prevent the issuance
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8
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will not amend
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or supplement the Registration Statement or Prospectus (other than (i) by filing
documents under the 1934 Act which are incorporated by reference therein or (ii)
an amendment or 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.
(c) Copies of the Registration Statement and the Prospectus. The
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Company will deliver to each Agent as many conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as such Agent may reasonably
request. The Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as such Agent shall reasonably request
so long as such Agent is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) Revisions of Prospectus -- Material Changes. Except as otherwise
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provided in subsection (k) of this Section 4 and Section 11(c) hereof, if at any
time during the term of this Agreement any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of counsel for
the Agents or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the reasonable opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, immediate notice
shall be given, and confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in their capacity as agents and to
cease sales of any Notes an Agent may then own as principal pursuant to a Terms
Agreement, and the Company will promptly prepare and file with the SEC such
amendment or supplement, whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to
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9
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(e) Prospectus Revisions -- Periodic Financial Information. Except as
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otherwise provided in subsections (b) and (k) of this Section 4, on or prior to
the date on which there shall be released to the general public preliminary
interim financial statement information related to the Company with respect to
each of the first three quarters of any 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.
(f) Prospectus Revisions -- Audited Financial Information. Except as
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otherwise provided in subsection (k) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
auditors with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) Earnings Statements. The Company will make generally available
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to its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve-month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(h) Blue Sky Qualifications. The Company will cooperate with the
-----------------------
Agents, in arranging for the qualification of the Notes for offering and sale
under the applicable
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10
securities laws of such states and other jurisdictions of the United States as
the Agents may reasonably designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process, qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not then
so subject. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in 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.
(i) 1934 Act Filings. The Company, during the period when the
----------------
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed by it with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. If required pursuant to the terms of a
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Terms Agreement, between the date of any Terms Agreement and the Settlement Date
with respect to such Terms Agreement, the Company will not, without the relevant
Agent's prior consent, offer or sell, or enter into any agreement to sell, any
debt securities of the Company (other than the Notes that are to be sold
pursuant to such Terms Agreement, commercial paper sold in the ordinary course
of business and private sales of debt securities exempt from registration under
the 1933 Act other than pursuant to Rule 144A thereunder).
(k) Suspension of Certain Obligations. The Company shall not be
---------------------------------
required to comply with the provisions of subsection (b) (to the extent that
subsection (b) requires the Company to furnish to the Agents prior to filing
documents proposed to be filed pursuant to the 1934 Act), (c), (d), (e) or (f)
of this Section 4 during any period from the time (i) the Agents shall have
suspended solicitation of purchases of the Notes in their capacity as agents
pursuant to a request from the Company and (ii) no Agent shall then hold any
Notes as principal purchased pursuant to a Terms Agreement, to the time the
Company shall determine that solicitation of purchases of the Notes should be
resumed or shall subsequently enter into a new Terms Agreement with an Agent.
SECTION 5. Conditions of Obligations.
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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
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11
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:
(a) Legal Opinions. On the date hereof, the Agents shall have
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received the following legal opinions, dated as of the date hereof and in
form and substance satisfactory to the Agents:
(1) Opinions of Company Counsel. (A) The opinion of any
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General Counsel or Assistant General Counsel of the Company, to the
effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
Commonwealth of Virginia.
(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.
<PAGE>
12
(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), at the time the
Registration Statement became effective, and as of the date
<PAGE>
13
hereof, contained or contains 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 or (B) that
the Prospectus as amended or supplemented on the 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
<PAGE>
14
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 Preferred
Stock", "Description of Depositary Shares", "Description of
Common Stock", "Description of Securities Warrants", "Description
of Capital Stock", "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.
<PAGE>
15
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.
(2) Opinion of Counsel to the Agent. The opinion of Shearman &
-------------------------------
Sterling ("Counsel to the Agents") shall cover such matters as shall
reasonably be requested by the Agents. In addition, such counsel
shall make the Additional Statements.
(b) Officer's Certificate. At the date hereof the Agents shall have
---------------------
received a certificate of the Chairman of the Board, the President, an
Executive Vice President or the Managing Director--Corporate Finance and
another person who is the principal financial or accounting officer of the
Company, or in their absence, other proper officers of the Company
satisfactory to the Agents, substantially in the form of Exhibit B hereto
and dated as of the date hereof, to the effect that, to the best of such
officer's knowledge, (i) the representations and warranties of the Company
contained in Section 2 hereof are true and correct in all material respects
with the same force and effect as though expressly made at and as of the
date of such certificate, (ii) the Company has performed or complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the date of such certificate, and (iii)
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have
--------------
received a letter from Ernst & Young, dated as of the date hereof and in
form and substance satisfactory to the Agents, to the effect that:
(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 25, 1998 and
incorporated by reference in the Registration Statement comply as to
form in all material respects with the
<PAGE>
16
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.
<PAGE>
17
(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.
(d) Other Documents. On the date hereof and on each Settlement Date
---------------
with respect to any applicable Terms Agreement, Counsel to the Agents shall
have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon
the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated shall
be reasonably satisfactory in form and substance to the Agents and to
Counsel to the Agents.
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.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
---------------------------------------------------------
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.
<PAGE>
18
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each acceptance
-----------------------------------------------
by it of an offer for the purchase of Notes (whether through such Agent as agent
or to such Agent as principal), and each delivery of Notes (whether through such
Agent as agent or to an Agent as principal), shall be deemed to be an
affirmation to such Agent that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered to the
Agents pursuant hereto are true and correct as of each such Representation Date,
and an undertaking to such Agent that such representations and warranties will
be true and correct at the time of delivery of the Note or Notes relating to
such acceptance or sale, as the case may be, as though made at and as of each
such Representation Date (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as amended
and supplemented).
(b) Subsequent Delivery of Certificates. Each time that the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates or other terms of Notes commonly included in a pricing supplement, and,
other than by an amendment or supplement which relates exclusively to an
offering of debt securities other than the Notes), or there is filed with the
SEC any document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement), the Company shall promptly furnish
or cause to be furnished to the Agents a certificate dated the date of filing
with the SEC of such supplement or document or the date of effectiveness of such
amendment, as the case may be, in form reasonably satisfactory to the Agents to
the effect that the statements contained in the certificate referred to in
Section 5(b) hereof which was last furnished to the Agents are true and correct
at the time of such amendment, supplement or filing, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred 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.
(c) Subsequent Delivery of Legal Opinions. Each time that the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rates or other terms of Notes commonly included in a pricing supplement
or similar changes or solely for the inclusion of additional financial
information, and, other than by an amendment or
<PAGE>
19
supplement which relates exclusively to an offering of debt securities other
than the Notes) or there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on Form 8-K or
Quarterly Report on Form 10-Q), the Company shall promptly furnish or cause to
be furnished to the Agents a written opinion of a General Counsel or any
Assistant General Counsel of the Company or other counsel satisfactory to the
Agents, dated the date of filing with the SEC of such supplement or document or
the date of effectiveness of such amendment, as the case may be, in form and
substance satisfactory to the Agents, of the same tenor as the opinions referred
to in Section 5(a)(1) hereof, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion; or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall furnish the Agents with a letter
substantially in the form of Exhibit C hereto to the effect that the Agents may
rely on such last opinion to the same extent as though it was dated the date of
such letter authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented
to include additional historical financial information derived from the
accounting records of the Company or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains
additional financial information (other than a Current Report on Form 8-K
containing solely information under Item 5 of the Information to be
included in the Report), the Company shall cause Ernst & Young forthwith to
furnish the Agents a letter, dated the date of filing of such amendment,
supplement or document with the SEC, in form reasonably satisfactory to the
Agents, of the same tenor as the portions of the letter referred to in
clauses (i) and (ii) of Section 5(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, and of the same general tenor as the portions of the
letter referred to in clauses (iii) and (iv) of said Section 5(c) with such
changes as may be necessary to 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.
SECTION 8. Indemnification and Contribution.
--------------------------------
(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
<PAGE>
20
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 last sentence of the fifth paragraph and the entire sixth paragraph
of text under the caption "Supplemental Plan of Distribution" in the Prospectus
Supplement dated May 7, 1999, concerning market making activities by the Agents
and 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
<PAGE>
21
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
<PAGE>
22
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.
<PAGE>
23
SECTION 9. Payment of Expenses.
-------------------
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.
<PAGE>
24
SECTION 10. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
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.
SECTION 11. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any
-----------------------------
Terms Agreement) may be terminated for any reason, at any time by either the
Company or an Agent, as to itself, upon the giving of written notice of such
termination to the other party hereto.
(b) Termination of a Terms Agreement. The Agent party to a Terms
--------------------------------
Agreement (or any purchaser of a Note sold through an Agent as agent) may
terminate such Terms Agreement (or such purchaser's obligation), immediately
upon notice to the Company, at any time prior to the Settlement Date relating
thereto if (i) there has been, since the date of such Terms Agreement (or
agreement to purchase) or since the respective dates as of which information is
given in the Prospectus, any change, or any development involving a prospective
change, in or affecting particularly the financial condition, business or
properties of the Company or its subsidiaries which, in the judgment of such
Agent, materially impairs the investment quality of the Notes, (ii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other 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).
(c) General. In the event of any such termination, no party will
-------
have any liability to the other party hereto, except that (i) an Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of
<PAGE>
25
termination (a) an Agent shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to purchase any
of the Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not occurred,
the covenants set forth in Sections 4 and 7 hereof and the provisions of Section
5 hereof, shall remain in effect until such Notes are so resold or delivered, as
the case may be, and (iii) the covenant set forth in Section 4(g) hereof, the
indemnity and contribution agreements set forth in Section 8 hereof and the
provisions of Sections 9, 10 and 14 hereof shall remain in effect.
SECTION 12. Notices.
-------
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
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
<PAGE>
26
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, Pierce, Fenner & Smith Incorporated
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 - 29/th/ 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
<PAGE>
27
Salomon Smith Barney 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.
SECTION 13. Governing Law.
-------------
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.
SECTION 14. Parties.
-------
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.
SECTION 15. Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original, but all such counterparts will together
constitute one and the same instrument.
<PAGE>
28
SECTION 16. Headings.
--------
The section headings are for convenience only and shall not affect
the construction hereof.
<PAGE>
29
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: David D. Owen
Title: Managing Director-Corporate
Finance
Accepted:
CHASE SECURITIES INC.
By: /S/ John W. Judson
----------------------------
Name: John W. Judson
Title: Managing Director
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /S/ Julie A. Keogh
----------------------------
Name: Julie A. Keogh
Title: Authorized Signatory
GOLDMAN, SACHS & CO.
By: /S/ Goldman Sachs & Co.
----------------------------
Name:
Title:
<PAGE>
30
LEHMAN BROTHERS INC.
By: /S/ Jeffrey Weiss
----------------------------
Name: Jeffrey Weiss
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /S/ Richard N. Doyte
----------------------------
Name: Richard N. Doyte
Title: Authorized Signatory
MORGAN STANLEY & CO. INCORPORATED
By: /S/ Harold S. Hendershot III
----------------------------
Name: Harold S. Hendershot III
Title: Vice President
NATIONSBANC MONTGOMERY SECURITIES LLC
By: /S/ Lynn T. McConnell
-------------------------
Name: Lynn T. McConnell
Title: Managing Director
SALOMON SMITH BARNEY INC.
By: /S/ Martha D. Bailey
----------------------------
Name: Martha D. Bailey
Title: First Vice President
<PAGE>
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.
<PAGE>
EXHIBIT A
---------
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:
<PAGE>
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.
<PAGE>
EXHIBIT B
---------
FORM OF OFFICERS' CERTIFICATE
-----------------------------
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 May 7, 1999 (the "Distribution Agreement") between the Company
and Chase Securities Inc., Credit Suisse First Boston Corporation, Goldman,
Sachs & Co., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, NationsBanc Montgomery
Securities LLC and Salomon Smith Barney 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: _____________, ____
_____________________________
[Title]
_____________________________
[Title]
<PAGE>
EXHIBIT C
---------
_______________, 19__
[Agents]
Re: CSX Corporation Medium-Term Notes
---------------------------------
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,
<PAGE>
EXHIBIT D
---------
(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___.)
DELAYED DELIVERY CONTRACT
-------------------------
[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
<PAGE>
D-2
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,
________________________________
(Name of Buyer)
By:______________________________
________________________________
(Name and Title of Signatory)
________________________________
________________________________
(Address of Buyer)
<PAGE>
D-3
Accepted, as of the date
first above written
CSX CORPORATION
By:_______________________
__________________________
(Title)
<PAGE>
EXHIBIT 4.1
CSX CORPORATION
Action of Authorized Pricing Officers
-------------------------------------
May 7, 1999
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
indenture, as so supplemented, is herein called the "Indenture"), and (ii)
resolutions duly adopted by the Board of Directors of the Corporation at a
meeting duly called and held on December 9, 1998, the undersigned officers
hereby reactivate the program to offer and sell the Corporation's Medium-Term
Notes, Series C, which series (as that term is used in Section 301 of the
Indenture) of Securities was established pursuant to the Action of Authorized
Pricing Officers dated as of September 30, 1998 with an aggregate initial
offering price of up to U.S. $750,000,000. As of the date hereof, U.S.
$350,000,000 in aggregate initial offering price of such Securities have been
issued. The undersigned officers hereby authorize the issuance of the
Corporation's Medium-Term Notes, Series C with an aggregate initial offering
price of up to U.S. $400,000,000 (the "Notes"). The Notes shall be issued under
the Indenture and 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 Notes shall include without limitation the terms set
forth below.
TITLE: Medium-Term Notes, Series C
INITIAL OFFERING
PRICE: Up to U.S. $400,000,000 (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").
1
<PAGE>
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.
2
<PAGE>
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 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.
3
<PAGE>
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 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
4
<PAGE>
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.
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 Indenture are hereby ratified and
approved.
6. The form, terms and provisions of the Distribution Agreement dated as
of May 7, 1999 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,
5
<PAGE>
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 May 7, 1999 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 re-delegate 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.
6
<PAGE>
Dated as of the date first set forth above.
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
Action of Authorized Pricing Officers
<PAGE>
EXHIBIT A
PROSPECTUS
Action of Authorized Pricing Officers
<PAGE>
EXHIBIT B-1
FORM OF FIXED RATE NOTE
Action of Authorized Pricing Officers
<PAGE>
EXHIBIT B-2
FORM OF FLOATING RATE NOTE
Action of Authorized Pricing Officers
<PAGE>
EXHIBIT C
FORM OF AUTHENTICATION CERTIFICATE
Action of Authorized Pricing Officers
<PAGE>
EXHIBIT 4.2
-----------
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 C
(Fixed Rate)
PERMANENT GLOBAL SECURITY
---------------
INTEREST PAYMENT DATES: PRINCIPAL AMOUNT:
ISSUE DATE:
REGULAR RECORD DATES:
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 APPLICABLE TO at original issue discount)
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:
<PAGE>
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
-2-
<PAGE>
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, the 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 shall, 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
-3-
<PAGE>
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 permanent global Security at Maturity shall 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 shall be March 1 and September
1 of each year and at Maturity and the Regular Record Dates for this permanent
global Security shall 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 permanent global 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 this permanent global Security falls on
a day that is not a Business Day, the required payment of principal, premium, if
any, or interest shall 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
shall 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 permanent
global 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 permanent global 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
-4-
<PAGE>
further that, in the case of clauses (y) and (z) above, definitive Registered
Securities of this series shall 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 shall not be entitled to receive physical delivery of
Securities in definitive form and shall 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 shall be made at the New York
office of the Security Registrar. Upon exchange of any portion of this permanent
global Security for one or more definitive Registered Securities of this series,
the Trustee shall endorse Exhibit A of this permanent global 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 permanent global 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,
shall be paid, as provided herein, to the Holder hereof which shall 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, shall 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 shall be payable on such Interest Payment Date or
proposed date for
-5-
<PAGE>
payment, as the case may be, only to the Holder hereof, and the Holder hereof
shall 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.
Payment of the principal of (and premium, if any) and any such
interest on this permanent global Security shall be made at the office or agency
of the Company maintained for that purpose in New York, New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
-------- -------
of interest may be made at the option of the Company by check mailed to the
addresses of the Persons entitled thereto as such addresses shall appear in the
Security Register or by transfer to an account maintained by the payee with, a
bank in The City of New York (so long as the applicable Paying Agent has
received transfer instructions in writing).
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this permanent global 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 permanent global 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 shall 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 shall be
delivered to the Depositary upon the cancellation hereof.
Unless otherwise indicated on the first page hereof, this permanent
global Security shall not have a sinking fund.
-6-
<PAGE>
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 shall
cease to accrue on such Securities or any portion thereof tendered for
repayment.
The repayment option may be exercised by the Holder of this permanent
global Security for less than the entire principal amount of this permanent
global Security, but in that event, the principal amount of this permanent
global Security 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 shall 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 permanent global Security, shall 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, shall be irrevocable unless waived by the Company.
Unless otherwise indicated on the first page hereof, this permanent
global Security shall 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
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<PAGE>
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.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series shall have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
--------- -------
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of (and premium, if any) or any interest on this permanent global
Security on or after the respective due dates expressed herein.
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
-8-
<PAGE>
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, shall 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
-9-
<PAGE>
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.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CSX CORPORATION
[Seal] By:_______________________________________
Name:
Title:
Attest:_______________________________________
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
-11-
<PAGE>
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:
<TABLE>
<CAPTION>
<S> <C>
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 right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common _______________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
--------------------------------
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<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
- --------------------------------------------------------------------------------
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
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.
<PAGE>
[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: __________________________________________________________
<PAGE>
EXHIBIT A
------- -
Schedule of Exchanges
---------------------
<PAGE>
EXHIBIT 4.3
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 C
(Floating Rate)
PERMANENT GLOBAL SECURITY
-------------------
<TABLE>
<S> <C>
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:
</TABLE>
<PAGE>
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
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<PAGE>
most recent Interest Payment Date to which interest has been paid or duly
provided for, provided, however that interest on a Security with daily or weekly
-------- -------
Interest Reset Dates, shall be paid from the day following the most recent
Regular Record Date, at a rate per annum equal to the Initial Interest Rate
shown above until the first Interest Reset Date shown above following the Issue
Date shown above and thereafter in accordance with the provisions below under
the headings "Determination of Commercial Paper Rate", "Determination of LIBOR",
"Determination of Treasury Rate", "Determination of CD Rate", "Determination of
Federal Funds Effective Rate", "Determination of Prime Rate", or "Determination
of CMT Rate", depending upon whether the Interest Rate Basis is the Commercial
Paper Rate, LIBOR, Treasury Rate, CD Rate, Federal Funds Effective Rate, Prime
Rate or CMT Rate as indicated above, until the principal hereof is paid or duly
made available for payment. Interest shall be payable on each Interest Payment
Date and at Maturity, commencing with the first Interest Payment Date after the
Issue Date shown above, 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. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date shall, 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, which shall be the date 15 calendar days prior to
each Interest Payment Date, whether or not a Market Day (as defined below). 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 shall be payable to the person to whom principal shall be payable.
The rate of interest on this Security shall be reset daily, weekly,
monthly, quarterly, semi-annually or annually (each, an "Interest Reset Date"),
as specified on the first page hereof. Unless otherwise specified on the first
page hereof, the Interest Reset Date shall be as follows: if this Security
resets daily, each Market Day; if this Security (other than Treasury Rate
Securities) resets weekly, the Wednesday of each week; in the case of Treasury
Rate Securities which reset weekly, the Tuesday of each week; if this Security
resets monthly, the third Wednesday of each month; if this Security resets
quarterly, the third Wednesday of March, June, September and December; if this
Security resets semi-annually, the third Wednesday of two months of each year
which are six months apart, as specified on the first page hereof; and if this
Security resets annually, the third Wednesday of one month of each year, as
specified on the first page hereof; provided, however, that the interest rate in
-------- -------
effect from the Issue Date of this Security (or any predecessor Security) to the
first Interest Reset Date shall be the Initial Interest Rate. If any
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<PAGE>
Interest Reset Date for this Security would otherwise be a day that is not a
Market Day, the Interest Reset Date for such Security shall be the next
succeeding Market Day, except that in the 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 shall 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
shall 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 shall not be less than zero.
Determination of Commercial Paper Rate
- --------------------------------------
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.
"Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate quoted on a discount basis on such date for commercial paper
having the Index Maturity specified on the first page hereof as published in
H.15(519) under the heading "Commercial Paper-Nonfinancial." If such rate is not
published prior to 9:00 A.M., New York City time, on the related Calculation
Date, then the Commercial Paper Rate shall be the Money Market Yield of the rate
on such Commercial Paper Interest Determination Date for commercial paper having
the Index Maturity specified on the first page hereof as published in H.15 Daily
Update under the heading "Commercial Paper--Nonfinancial." If such rate is not
published in H.15(519) or in H.15 Daily Update by 3:00 P.M., New York City time,
on the related Calculation Date, the Commercial Paper Rate for that Commercial
Paper Interest Determination Date shall be calculated by the Calculation Agent
and shall be the Money Market Yield of the arithmetic mean of the offered rates,
as of 11:00 A.M., New York City time, on that Commercial Paper Interest
Determination Date, of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent (after consultation with the Company)
for commercial paper having the Index Maturity specified on the first page
hereof placed for a nonfinancial entity whose senior unsecured bond rating is
"AA", or the equivalent, from a nationally recognized rating agency; provided,
--------
however, that if the dealers so selected by the Calculation Agent are not
- -------
quoting as mentioned in this sentence, the Commercial Paper Rate shall be the
Commercial Paper Rate in effect on such Commercial Paper Interest Determination
Date.
-4-
<PAGE>
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
------------------------
360 - (D x M)
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.
"H.15 Daily Update" means the daily update of H.15(519), available
through the world wide website of the Board of Governors of the Federal Reserve
System at http://www.bog.frb.fed.us/releases/h15/update, or any successor site
or publication.
Determination of LIBOR
- ----------------------
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 shall
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 shall 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
-5-
<PAGE>
Page as specified in clause (i) above, the Calculation Agent shall request
the principal London offices of each of four major reference banks in the
London interbank market, as selected by the Calculation Agent (after
consultation with the Company), 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 shall be the arithmetic mean of such quotations. If fewer
than two such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date shall 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 (after
consultation with the Company) 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 shall 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 Bridge
Telerate, Inc. (or any successor service) 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.
Determination of Treasury Rate
- ------------------------------
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.
-6-
<PAGE>
"Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury bills") having the Index Maturity specified on
the first page hereof as that rate appears under the caption "INVESTMENT RATE"
on the display on Bridge Telerate, Inc., or any successor service, on page 56 or
any other page as may replace page 56 on that service ("Telerate Page 56") or
page 57 or any other page as may replace page 57 on that service ("Telerate Page
57"). If such rate is not published by 3:00 P.M., New York City time, on the
related Calculation Date, the Treasury Rate shall be the auction average rate of
such Treasury bills (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. If the rate
described in the preceding sentence is not announced by the United States
Department of the Treasury, or if such auction is not held, the Treasury Rate
shall be the rate (expressed as a bond equivalent, on the basis of a year of 365
or 366 days, as applicable, and applied on a daily basis) on the applicable
Treasury Interest Determination Date of Treasury Bills having the Index Maturity
specified on the face hereof published in H.15(519) under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market." If the rate described in
the preceding sentence is not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the Treasury Rate shall be the rate on the
applicable Treasury Interest Determination Date of the applicable Treasury Bills
as published in H.15 Daily Update, or other recognized electronic source used
for the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market." If the rate described in
the preceding sentence is not so published by 3:00 P.M., New York City time, on
the related Calculation Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates as of approximately 3:30 P.M., New York City time, on such Treasury
Interest Determination Date, of three leading primary United States government
securities dealers (each a "Reference Dealer") selected by the Calculation Agent
(after consultation with the Company), for the issue of Treasury bills with a
remaining maturity closest to the specified Index Maturity; provided, however
--------- -------
that if the Reference Dealers so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate shall be the Treasury
Rate in effect on such Treasury Interest Determination Date.
Determination of CD Rate
- ------------------------
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
9:00 A.M., New York City time, on the related Calculation Date,
-7-
<PAGE>
then the CD Rate shall 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 H.15 Daily Update under the
heading "CDs (Secondary Market)." If such rate is not published in H.15(519) or
in H.15 Daily Update by 3:00 P.M., New York City time, on the related
Calculation Date, then the CD Rate for such CD Interest Determination Date shall
be calculated by the Calculation Agent and shall be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Interest Determination Date, of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent (after consultation with the Company) for negotiable U.S.
dollar certificates of deposit of major United States money center banks of the
highest credit standing (in the market for negotiable U.S. dollar certificates
of deposit) with a remaining maturity closest to the Index Maturity specified on
the first page hereof in an amount that is representative for a single
transaction in that market at that time; provided, however, that if the dealers
-------- -------
so selected by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate shall be the CD Rate in effect on such CD Interest
Determination Date.
Determination of Federal Funds Effective Rate
- ---------------------------------------------
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.
"Federal Funds Effective Rate" means, with respect to any Federal Funds
Interest Determination Date, the rate on that date for Federal Funds having the
Index Maturity specified on the first page hereof as published in H.15(519)
under the heading "Federal Funds (Effective)" as displayed on Bridge Telerate,
Inc. (or any successor service) on page 120 or any other page as may replace the
applicable page on that service ("Telerate Page 120"). If such rate is not
displayed on Telerate Page 120 or is not published by 9:00 A.M., New York City
time, on the related Calculation Date, then the Federal Funds Effective Rate
shall be the rate on such Federal Funds Interest Determination Date as published
in H.15 Daily Update under the heading "Federal Funds/(Effective)." If such
rate is not published in H.15(519) or in H.15 Daily Update by 3:00 P.M., New
York City time, on the related Calculation Date, then the Federal Funds
Effective Rate for such Federal Funds Interest Determination Date shall be
calculated by the Calculation Agent and shall be the arithmetic mean of the
rates as of 9:00 A.M., New York City time, on such Federal Funds Interest
Determination Date for the last transaction in overnight Federal Funds arranged
by three leading brokers of Federal Funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Company);
provided, however, that if the brokers so selected by the Calculation Agent are
- -------- -------
not quoting as mentioned in this sentence, the Federal Funds Effective Rate
shall be the Federal Funds Effective Rate in effect on such Federal Funds
Interest Determination Date.
-8-
<PAGE>
Determination of Prime Rate
- ---------------------------
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 not published prior to 9:00 A.M., New York City time, on
the related Calculation Date, then the Prime Rate shall be the rate on such
Prime Rate Interest Determination Date as published in H.15 Daily Update
opposite the caption "Bank Prime Loan." If such rate is not published prior to
3:00 P.M., New York City time, on the related Calculation Date, in either
H.15(519) or H.15 Daily Update, then the Prime Rate shall be determined by the
Calculation Agent and shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen US PRIME 1
Page (as defined below) as such bank's prime rate or base lending rate as in
effect for that Prime Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen US PRIME 1 Page for such Prime Interest
Determination Date, then the Prime Rate shall be determined by the Calculation
Agent and shall be the arithmetic mean of the prime rates quoted on the basis of
the actual number of days in the year divided by a 360-day year as of the close
of business on such Prime Interest Determination Date by at least three major
money center banks in The City of New York selected by the Calculation Agent
(after consultation with the Company); provided, however, that if the banks so
-------- -------
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Prime Rate shall be the Prime Rate in effect on such Prime Interest
Determination Date.
"Reuters Screen US PRIME 1 Page" means the display designated as page
"US PRIME 1" on the Reuter Monitor Money Rates Service (or any successor
service) or such other page as may replace the US PRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major United
States banks.
Determination of CMT Rate
- -------------------------
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 7051, the rate on such CMT
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<PAGE>
Rate Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the week or the month, as applicable, ended immediately preceding the week
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 shall 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 shall 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 shall be calculated by
the Calculation Agent and shall 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 cannot obtain three such Treasury notes
quotations, the CMT Rate on such CMT Rate Interest Determination Date shall be
calculated by the Calculation Agent and shall 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 shall be based on the arithmetic mean of the offer prices
obtained and neither the highest nor the lowest of such quotes shall be
eliminated; provided, however, that if fewer than three Reference Dealers so
selected by the Calculation Agent are quoting as described herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date shall 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
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<PAGE>
Maturity Index, the Calculation Agent shall obtain quotations for the Treasury
notes with the shorter remaining term to maturity and shall use such quotations
to calculate the CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc. (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
shall be calculated. If no such maturity is specified on the first page hereof,
the Designated CMT Maturity Index shall be two years.
Unless otherwise specified on the first page hereof under "Other
Terms", all percentages resulting from any calculation on this Security shall be
rounded, if necessary, to the nearest one- hundred thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards (e.g.,
- -
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655) and 9.876544%
(or .09876544) being rounded to 9.87654% (or .0987654)), and all dollar amounts
used in or resulting from such calculation on this Security shall be rounded to
the nearest cent (with one-half cent being rounded upwards).
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") shall 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") shall 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") shall 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
shall 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.
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<PAGE>
"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 shall
provide the interest rate then in effect, and, if then determined, the interest
rate which shall 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 shall 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 shall 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 shall 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 shall 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
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<PAGE>
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 shall 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 shall accrue
on such payment for the period from and after the Maturity to the date of such
payment on the next succeeding Market Day.
Unless otherwise specified on the first page hereof under "Other
Terms", interest payments hereon shall be the amount of interest accrued from
and including each Interest Payment Date (or from and including the Issue Date
in which case no interest has been paid) to, but excluding, the next succeeding
Interest Payment Date or Maturity, as the case may be; provided, however, that
-------- -------
if the Interest Reset Dates with respect to any Security are daily or weekly,
interest payable on any Interest Payment Date, other than interest payable (with
respect to such principal) on any date on which principal on any such Note is
payable, shall include interest accrued to and including the next preceding
Regular Record Date.
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)
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<PAGE>
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 shall 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 shall not be entitled to receive physical delivery of Securities
in definitive form and shall 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 shall 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,
shall be paid, as provided herein, to the Holder hereof which shall 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
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<PAGE>
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, shall 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 shall
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 shall 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.
Payment of the principal of (and premium, if any) and any such interest
on this permanent global Security shall be made at the office or agency of the
Company maintained for that purpose in New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
-------- -------
of interest may be made at the option of the Company by check mailed to the
addresses of the Persons entitled thereto as such addresses shall appear in the
Security Register or by transfer to an account maintained by the payee with, a
bank in The City of New York (so long as the applicable Paying Agent has
received transfer instructions in writing).
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 shall 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 shall be
delivered to the Depositary upon the cancellation hereof.
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<PAGE>
Unless otherwise indicated on the first page hereof, this permanent
global Security shall 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 shall 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 shall 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, shall 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, shall be irrevocable unless waived by the Company.
Unless otherwise indicated on the first page hereof, this permanent
global Security shall 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
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<PAGE>
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.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series shall have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
-------- -------
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of (and premium, if any) or any interest on this permanent global
Security on or after the respective due dates expressed herein.
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
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<PAGE>
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, shall 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.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate 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
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<PAGE>
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:
<TABLE>
<S> <C>
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)
</TABLE>
Additional abbreviations may also be used though not in the above list.
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<PAGE>
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
________________________________________________________________________________
Insert Taxpayer Identification No.
- ----------------------------------
________________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
________________________________________________________________________________
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.
<PAGE>
[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: _________________________________________________________
<PAGE>
EXHIBIT A
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Schedule of Exchanges
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<PAGE>
EXHIBIT 5.1
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[LETTERHEAD OF McGUIRE, WOODS, BATTLE & BOOTHE LLP]
May 7, 1999
CSX Corporation
One James Center
901 East Cary Street
Richmond, VA 23219
Ladies and Gentlemen:
We have advised CSX Corporation, a Virginia corporation (the "Company"), in
connection with (i) the Registration Statement on Form S-3 (File No. 333-68885)
(the "Registration Statement") filed by the Company with the Securities and
Exchange Commission for the purpose of registering under the Securities Act of
1933, as amended, the Company's Debt Securities, Preferred Stock, Depositary
Shares, Common Stock and Securities Warrants (collectively, the "Securities"),
from the sale of which the Company may receive proceeds of up to $800,000,000,
to be offered from time to time by the Company on terms to be determined at the
time of the offering and (ii) the issuance by the Company of up to $400,000,000
aggregate initial offering price of Medium-Term Notes, Series C, due nine months
or longer from date of issue ("Notes") as described in the Company's Prospectus,
dated January 5, 1999, which is a part of the Registration Statement, and
Prospectus Supplement, dated May 7, 1999, and 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 (the indenture, as so
supplemented, is herein called the "Indenture") and the Action of Authorized
Pricing Officers adopted as of September 30, 1998 and Action of Authorized
Pricing Officers adopted as of May 7, 1999 (the "Actions of Authorized Pricing
Officers"), and the solicitation of sales of Notes by the Company pursuant to a
Distribution Agreement, dated May 7, 1999 (the "Distribution Agreement"), among
the Company and the Agents party thereto. Capitalized terms used and not defined
herein shall have the meanings assigned to them in the Registration Statement.
We have examined such corporate records, certificates and other documents,
and reviewed such questions of law, as we have considered necessary or
appropriate for the purpose of this opinion.
On the basis of such examination and review, we advise you that, in our
opinion, when the terms of a particular Note and the issue and sale thereof have
been duly authorized and established in conformity with the Indenture and such
Note has been duly completed, executed,
<PAGE>
authenticated and issued in accordance with the Indenture and the Actions of
Authorized Pricing Officers and delivered against payment therefor as
contemplated by the Distribution 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, 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 U.S. 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.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Current Report on Form 8-K and the incorporation of this opinion by
reference in the Registration Statement and to the references to us under the
heading "Validity of the Securities" in the Registration Statement and the
heading "Validity of Notes" in the Prospectus Supplement relating to the Notes.
We do not admit by giving this consent that we are in the category of persons
whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ McGuire, Woods, Battle & Boothe LLP
