As filed with the Securities and Exchange Commission on April 12, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
__________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
Illinois Central Railroad Company
(Exact name of registrant as specified in its charter)
Delaware 4011 36-2728842
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Code Number) Identification No.)
incorporation or
organization)
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
(312) 755-7500
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Ronald A. Lane
Vice President and General Counsel and Secretary
Illinois Central Railroad Company
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
(312) 755-7500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
__________
Copies to:
John J. McCarthy, Jr. John B. Tehan
Davis Polk & Wardwell Simpson Thacher & Bartlett
450 Lexington Avenue 425 Lexington Avenue
New York, New York 10017 New York, New York 10017
__________
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
__________
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: |X|
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Class Amount Offering Aggregate Amount of
of Securities to be to be Price Per Offering Registration
Registered Registered(1) Security(2) Price(2) Fee
- ------------------- ------------- ----------- --------- ------------
Debt Securities ... $200,000,000 100% $200,000,000 $68,966
(1) Or, if any debt security registered hereby is issued at an original
issue discount, such greater amount as shall result in aggregate gross
proceeds not in excess of $200,000,000 to the registrant.
(2) Estimated solely for purposes of calculating the registration fee.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
PROSPECTUS
Illinois Central Railroad Company
Debt Securities
Illinois Central Railroad Company (the "Company" or the "Railroad"), a
Delaware corporation, from time to time may offer its debt securities (the
"Securities"), in one or more series, up to an aggregate principal face
amount of $200,000,000 (or such greater amount, if Securities are issued at
an original issue discount, as shall result in aggregate gross proceeds to
the Company of $200,000,000). The Securities will be unsecured obligations
of the Company, ranking pari passu with all existing and future unsecured
and unsubordinated indebtedness of the Company for borrowed money and
senior to all future subordinated indebtedness of the Company.
When the Securities of a particular series are offered, a supplement
to this Prospectus will be delivered (the "Prospectus Supplement"),
together with this Prospectus setting forth the terms of the Securities,
including, where applicable, the specific designation, aggregate principal
amount, denominations, currency of payments, maturity, rate (which may be
fixed or variable) and time of payment of interest, any terms for
redemption at the option of the Company or the holder, any terms for
sinking fund payments, the initial public offering price, the names of, and
the principal amounts to be purchased by, underwriters and the compensation
of such underwriters, any listing of the Securities on a securities
exchange and the other terms in connection with the offering and sale of
such Securities.
The Company may sell the Securities to or through underwriters, and
also may sell the Securities directly to other purchasers or through agents
or dealers. See "Plan of Distribution". Such underwriters, agents or
dealers may include Lehman Brothers, or may be a group of underwriters,
agents or dealers represented by firms including Lehman Brothers.
__________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
__________________________________
LEHMAN BROTHERS
April , 1995
IN CONNECTION WITH THE OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
No dealer, salesman or any other person has been authorized to give
any information or to make any representations, other than those contained in
this Prospectus or any Prospectus Supplement, in connection with the offering
contained herein or therein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company or any underwriter or agent. This Prospectus and any Prospectus
Supplement do not constitute an offer to sell, or a solicitation of an offer
to buy, any securities other than the registered securities to which it
relates or any of such securities in any jurisdiction to any person to whom it
is unlawful to make such offer or solicitation. Neither the delivery of this
Prospectus or any Prospectus Supplement nor any sale made hereunder and
thereunder shall, under any circumstances, create an implication that there
has been no change in the information herein or therein set forth since the
date hereof or thereof or that such information is correct as of any time
subsequent to its date.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission") a Registration Statement on Form S-3 (which term shall
include all amendments, exhibits and schedules thereto) under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the
Securities. This Prospectus does not contain all the information set forth in
the Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission, and to which reference is
hereby made. Statements made in this Prospectus as to the contents of any
document referred to are not necessarily complete. With respect to each such
document filed as an exhibit to the Registration Statement, reference is made
to the exhibit for a more complete description of the matter involved, and
each such statement shall be deemed qualified in its entirety by such
reference. The Registration Statement may be inspected, without charge, at the
public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Copies of
such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C 20549 at prescribed
rates.
The Company is subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith is required to file annual and quarterly reports and
other information with the Commission. Reports and other information filed by
the Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 or at the Commission's regional offices located at 7 World Trade
Center, Suite 1300, New York, New York 10048; and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
may be obtained at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Such
reports and other information can also be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1994 is incorporated by reference and made a part of this Prospectus.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of this offering shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein or contained in
this Prospectus shall be deemed to be supplemented, modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein supplements, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed
to constitute a part of this Prospectus.
The Company undertakes to provide without charge to each person to
whom this Prospectus is delivered, on written or oral request of such person,
a copy (without exhibits) of any and all documents incorporated herein by
reference. Requests for such copies should be directed to Illinois Central
Railroad Company, 455 North Cityfront Plaza Drive, Chicago, Illinois
60611-5504, Attention: Corporate Relations, telephone number (312) 755-7500.
The Company
Illinois Central Railroad Company and subsidiaries (the "Company" or
the "Railroad"), traces its origin to 1851, when the Railroad was incorporated
as the nation's first land grant railroad. Today, the Railroad operates 2,700
miles of main line track between Chicago and the Gulf of Mexico, primarily
carrying chemicals, coal and paper north, with coal, grain and milled grain
products moving south along its lines. The Railroad is a wholly-owned
subsidiary and a principal asset of Illinois Central Corporation ("IC"). The
principal executive office of the Railroad is located at 455 North Cityfront
Plaza Drive, Chicago, Illinois 60611-5504 and its telephone number is (312)
755-7500.
USE OF PROCEEDS
Unless otherwise indicated in an applicable Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the Securities
for general corporate purposes, primarily the retirement of outstanding
indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the years in the
five-year period ending December 31, 1994 are as follows:
Years Ended December 31,
--------------------------------------------------
1994 1993 1992 1991 1990
---------- ------ ------ ------ ------
Ratio of earnings to
fixed charges 4.75 3.96 2.81 2.26 1.74
For purposes of these computations, earnings before fixed charges
consist of income before income taxes, extraordinary item and cumulative
effect of accounting changes plus fixed charges less capitalized interest.
Fixed charges consist of interest on indebtedness including the amortization
of debt issuance costs, capitalized interest and the portion of
non-capitalized lease expense representative of interest.
DESCRIPTION OF THE SECURITIES
The Securities offered hereby will be issued under an Indenture,
dated as of April 1, 1995 (the "Indenture"), between the Company and The First
National Bank of Boston, as Trustee (the "Trustee"). The statements herein
relating to the Securities and the Indenture are summaries and are subject to
the detailed provisions of the Indenture. A copy of the form of Indenture is
filed as an exhibit to the Registration Statement of which this Prospectus is
a part and is available as described under "Available Information." The
following summaries of certain provisions of the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indenture, including the definitions therein of
certain capitalized terms used in this Prospectus. Whenever particular
Sections or defined terms of the Indenture are referred to herein, such
Sections or defined terms are incorporated herein by reference.
General
The Indenture provides for issuance of debentures, notes or other
evidences of indebtedness by the Company ("Securities") in one or more series
in an unlimited amount from time to time. The Securities may be issued in
registered form ("Registered Securities") without coupons or in unregistered
form ("Unregistered Securities") with or without coupons and in either case in
global form.
Registered Securities may be presented for registration of transfer
or exchange at the office or agency of the Company in New York, New York.
Subject to the limitations provided in the Indenture, such services will be
provided without charge, other than any tax or other governmental charge
payable in connection therewith. Unregistered Securities transfer by delivery
(Section 2.7).
The Securities will be unsecured obligations of the Company, ranking
pari passu with all existing and future unsecured and unsubordinated
indebtedness of the Company. The Indenture does not limit the incurrence or
issuance of other unsecured debt of the Company. The terms of the Indenture
do restrict, however, the ability of the Company to grant liens on its assets
and the assets of Subsidiaries as more fully described below under "Limitation
on Liens". It is anticipated that the Securities will not be listed on any
securities exchange.
Reference is made to the Prospectus Supplement for the following
terms of the Securities of each series offered thereby (to the extent such
terms are applicable to such Securities): (1) the designation of the
Securities of the series; (2) any limit upon the aggregate principal amount of
the Securities of the series and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial issuance of such
Securities; (3) any date on which the principal of the Securities of the
series is payable (which date may be fixed or extendible); (4) any rate (which
may be fixed or variable) per annum at which any Securities of the series
shall bear interest, any interest accrual, payment and record dates and/or any
method by which any such rate or date shall be determined; (5) if other than
as provided in the Indenture, any place where principal of and interest on
Securities of the series shall be payable, where Registered Securities of the
series may be surrendered for exchange, where notices or demands may be served
and where notice to Holders may be published and any time of such payment at
any place of payment; (6) any right of the Company to redeem Securities of the
series and any terms thereof; (7) any obligation of the Company to redeem,
purchase or repay Securities of the series and any terms thereof; (8) if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable; (9) if
other than the principal amount thereof, the portion of the principal amount
of Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof; (10) if other than the coin or currency
in which the Securities of the series are denominated, the coin or currency in
which payment of the principal of or interest on the Securities of the series
shall be payable or, if the amount of any payments of principal of and/or
interest on the Securities of the series may be determined with reference to
an index based on a coin or currency other than that in which the Securities
of the series are denominated, the manner in which such amounts shall be
determined; (11) if other than the currency of the United States of America,
the currency or currencies, including composite currencies, in which payment
of the principal of (and premium, if any) and interest on the Securities of
the series shall be payable, and the manner in which any such currencies shall
be valued against other currencies in which any other Securities shall be
payable; (12) if other than as Registered Global Securities, whether the
Securities of the series or any portion thereof will be issuable as Registered
Securities or Unregistered Securities (with or without coupons), and any terms
of exchange; (13) any obligation of the Company to pay additional amounts on
the Securities of the series in respect of any tax, assessment or governmental
charge withheld or deducted and any right of the Company to redeem such
Securities rather than pay such additional amounts; (14) if the Securities of
the series are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions; (15) if
other than the Person acting as Trustee, any Agent acting with respect to the
Securities of the series; (16) any provisions for the defeasance of any
Securities of the series in addition to, in substitution for or in
modification of the provisions described in "Defeasance and Covenant
Defeasance"; (17) the identity of any Depositary for Registered Global
Securities of the series other than The Depository Trust Company and any
circumstances other than those described in "Global Securities" in which any
Person may have the right to obtain Registered Securities in exchange
therefor; (18) any provisions for Events of Default applicable to any
Securities of the series in addition to, in substitution for or in
modification of those described in "Events of Default"; (19) any provision for
covenants applicable to any Securities of the series in addition to, in
substitution for or in modification of those described in "Covenants"; and
(20) any other terms of the Securities of the series not inconsistent with the
Indenture.
Global Securities
The Securities of each series will be issued in the form of one or
more fully registered global Securities (each a "Registered Global Security")
registered in the name of The Depository Trust Company (the "Depositary") or a
nominee thereof, unless otherwise established for the Securities of such
series. Except as described in a Prospectus Supplement hereto, Securities in
definitive form will not be issued. Unless and until a Registered Global
Security is exchanged in whole or in part for Securities in definitive form,
it may not be registered for transfer or exchange except as a whole by the
Depositary for such Registered Global Security to a nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary (Section 2.7).
Upon the issuance of any Registered Global Security, and the deposit
of such Registered Global Security with or on behalf of the Depositary, the
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Securities represented by such
Registered Global Security to the accounts of institutions ("participants")
entitled thereto that have accounts with the Depositary designated by the
underwriters or their agents engaging in any distribution of the Securities.
Ownership of beneficial interests in a Registered Global Security will be
limited to participants or Persons that may hold interests through
participants. Ownership of beneficial interests by participants in a
Registered Global Security will be shown on, and the transfer of such
beneficial interests will be effected only through, records maintained by the
Depositary or by its nominee. Ownership of beneficial interests in a
Registered Global Security by Persons that hold through participants will be
shown on, and the transfer of such beneficial interests within such
participants will be effected only through, records maintained by such
participants. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in certificated form.
The foregoing limitations and such laws may impair the ability to own,
transfer or pledge beneficial interests in Registered Global Securities.
So long as the Depositary, or its nominee, is the registered owner
of a Registered Global Security, the Depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Securities
represented by such Registered Global Security for all purposes under the
Indenture. Except as specified below, owners of beneficial interests in a
Registered Global Security will not be entitled to have Securities represented
by such Registered Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Securities in certificated form
and will not be considered the Holders thereof for any purposes under the
Indenture (Section 2.7). Accordingly, each Person owning a beneficial
interest in a Registered Global Security must rely on the procedures of the
Depositary and, if such Person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any
rights of a holder of Securities under the Indenture. The Depositary may
grant proxies and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a holder of Securities is entitled to give or take under the
Indenture. The Company understands that, under existing industry practices,
if the Company requests any action of holders of Securities or any owner of a
beneficial interest in a Registered Global Security desires to give any notice
or take any action a holder of Securities is entitled to give or take under
the Indenture, the Depositary would authorize the participants holding the
relevant beneficial interests to give such notice or take such action, and
such participants would authorize the beneficial owners owning through such
participants to give such notice or take such action or would otherwise act
upon the instructions of the beneficial owners owning through them.
The Depositary or a nominee thereof, as holder of record of a
Registered Global Security, will be entitled to receive payments of principal
and interest for payment to beneficial owners in accordance with customary
procedures established from time to time by the Depositary. On the date
hereof, the agent for the payment, transfer and exchange of the Securities is
the Trustee, acting through its Corporate Trust Office located in the Borough
of Manhattan, The City of New York.
The Company expects that the Depositary, upon receipt of any payment
of principal or interest in respect of a Registered Global Security, will
immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Registered Global Security as shown on the records of the Depositary.
The Company also expects that payments by participants to owners of beneficial
interests in a Registered Global Security held through such participants will
be governed by standing instructions and customary practices, and will be the
responsibility of such participants. None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Registered Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests (Section 2.14).
If the Depositary is at any time unwilling or unable to continue as
Depositary or ceases to be a clearing agency registered or in good standing
under the Exchange Act, and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by the Company within 90 days,
or, if at any time an Event of Default shall have occurred and be continuing
under the Indenture, the Company will issue Securities in definitive
certificated form in exchange for the Registered Global Securities (Section
2.7).
In the event that the book-entry system is discontinued, the
following provisions would apply. The Trustee or any successor registrar
under the Indenture shall keep a register for the Securities in definitive
certificated form at its Corporate Trust Office. Subject to the further
conditions contained in the Indenture, Securities in definitive certificated
form may be transferred or exchanged for one or more Securities in different
authorized denominations upon surrender thereof at the Corporate Trust Office
of the Trustee or any successor Registrar under the Indenture by the
registered Holders or their duly authorized attorneys. Upon surrender of any
Security to be transferred or exchanged, the Trustee or any successor
registrar under the Indenture shall record the transfer or exchange in the
Security register and the Company shall issue, and the Trustee shall
authenticate and deliver, new Securities in definitive certificated form
appropriately registered and in appropriate authorized denominations (Section
2.7). The Trustee shall be entitled to treat the registered Holders of the
Securities in definitive certificated form, as their names appear in the
Security register as of the appropriate date, as the owners of such Securities
for all purposes under the Indenture (Section 2.14). Subject to the further
conditions contained in the Indenture, payments in respect of the Securities
in definitive certificated form will be made at the office or agency of the
Company maintained for that purpose as the Company may designate from time to
time, except that, at the option of the Company, interest payments, if any, on
the Securities may be made (i) by checks mailed to the Persons entitled
thereto at their registered addresses or (ii) by transfer in immediately
available funds to an account maintained by the person entitled thereto as
specified by such Person (Section 4.1).
Consolidation, Merger or Sale by the Company
The Company shall not consolidate or merge with any other Person or
sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety in one
transaction or series of transactions to any Person, unless (1) either (a) the
Company shall be the continuing Person or (b) such Person shall be a
corporation organized and validly existing under the laws of the United States
of America or any State thereof or the District of Columbia and shall
expressly assume by a supplemental indenture all of the Company's obligations
under the Securities and under the Indenture; (2) immediately before and after
such transaction or each element of such series, no Default or Event of
Default shall have occurred and be continuing; and (3) giving effect to such
transaction will not cause an event of default under any mortgage, bond,
debenture, note or other instrument or obligation that the Company or any
Subsidiary of the Company is a party to or bound by. Upon any such
consolidation, merger, sale, conveyance, assignment, transfer, lease or other
disposition, the successor corporation formed by such consolidation, or into
which the Company is merged or to which such sale, conveyance, assignment,
transfer, lease or other disposition is made, shall succeed to, and be
substituted for, and may exercise every right and power of the Company under
the Indenture and under the Securities (Sections 5.1 and 5.2).
Events of Default, Notice and Certain Rights on Default
Events of Default with respect to the Securities of any series are
defined in the Indenture as being: (a) failure to pay any installment of
interest on any Security of such series when due and the continuance of such
failure for 30 days; (b) failure to pay the principal of any Security of such
series when due; (c) failure for 60 days after notice to the Company by the
Trustee, or by the Holders of 25% in aggregate principal amount of the
Securities of such series then outstanding, to perform or observe any other
covenant, condition or agreement in the Securities of such series or in the
Indenture; (d) the holders of other indebtedness of the Company or any
Subsidiary shall have declared an aggregate amount in excess of $20,000,000
thereof to be due and payable prior to the date on which it would otherwise
have become due or payable and such declaration shall not have been cured,
waived, rescinded or annulled or such indebtedness shall not have been
discharged within a period of 30 days; (e) certain events of bankruptcy,
insolvency or reorganization of the Company or a Material Subsidiary; or (f)
any other Event of Default established for the Securities of such series
(Section 6.1).
The Indenture provides that, if an Event of Default with respect to
the Securities of any series then outstanding occurs and is continuing, then,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of any such affected series then outstanding (each
such series treated as a separate class) by notice in writing to the Company
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of any such series are Original Issue
Discount Securities, such portion of the principal amount as may be
established for such series) of all Securities of such affected series, and
the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable,
except that, if an Event of Default described in clause (e) occurs and is
continuing, then the principal amount (or, if any Securities are Original
Issue Discount Securities, such portion of the principal as may be established
for such series) of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, without any
notice or other action by any Holder or the Trustee, to the full extent
permitted by applicable law (Section 6.2).
The Indenture provides that the Trustee will, within 60 days after
the occurrence of a Default with respect to the Securities, give to the
Holders of the Securities notice of all Defaults known to the Trustee,
provided that except in the case of a Default in payment on the Securities,
the Trustee may withhold such notice if and so long as a Responsible Officer
in good faith determines that withholding such notice is in the interest of
the Holders of the Securities (Section 7.5). "Default" means any event which
is, or after notice or passage of time or both would be, an Event of Default
(Section 1.1).
The Indenture provides that the holders of a majority in aggregate
principal amount of the then outstanding Securities, by notice to the Trustee,
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee (Section 6.5).
Subject to the further conditions contained in the Indenture, the
holders of a majority in aggregate principal amount outstanding of the
Securities of any series may waive, on behalf of the holders of all Securities
of such series, any past Default or Event of Default and its consequences
except a Default or Event of Default (i) in the payment of the principal of or
interest, if any, on any Security of such series or (ii) in respect of a
covenant or provision of the Indenture which cannot under the terms of the
Indenture be amended or modified without the consent of the holder of each
outstanding Security adversely affected thereby (Section 6.4).
The term "Material Subsidiary" means each existing Subsidiary of the
Company and each Subsidiary hereafter acquired or formed by the Company which,
in each case, for the most recent fiscal year of the Company, was the owner of
5% or more of the consolidated assets of the Company and its Subsidiaries
taken as a whole, as set forth on the consolidated financial statements of the
Company for such fiscal year (Section 1.1).
The term "Subsidiary" means, with respect to any Person, any
corporation or other entity of which more than 50% of the shares of Voting
Stock are, at the time directly or indirectly owned by such Person. Unless
otherwise indicated, "Subsidiary" refers only to Subsidiaries of the Company
(Section 1.1).
The term "Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation or other
entity (irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of
any contingency) (Section 1.1).
Limitation on Liens
The Indenture provides that the Company will not, and will not permit
any Subsidiary to (a) create, issue, assume, incur or guarantee any notes,
bonds, debentures or other similar evidences of indebtedness for money
borrowed ("Debt") if such Debt is secured by a mortgage, pledge or lien
("Lien") upon, or (b) directly or indirectly secure any outstanding Debt by a
Lien upon, any Principal Property of the Company or any Subsidiary, now owned
or hereafter acquired, without effectively providing that the Securities shall
be secured equally and ratably with such Debt, except that the foregoing
restrictions shall not apply to (i) Liens on any Principal Property acquired
after the date of the Indenture to secure or provide for the payment or
refinancing of the purchase price or acquisition cost thereof, (ii) Liens on
any Principal Property to finance improvements thereof which do not exceed in
the aggregate $10,000,000 at any time, (iii) Liens on any Principal Property
of any corporation existing at the time such corporation becomes a Subsidiary
after the date of the Indenture, (iv) Liens in existence on Principal Property
on the date of the Indenture, (v) Liens to secure Debt of a Subsidiary to the
Company or another Subsidiary, (vi) Liens in favor of governmental bodies to
secure advance or progress payments pursuant to any contract or statute, (vii)
pledges or deposits in connection with workers' compensation, unemployment
insurance and other social security legislation and deposits securing
liability to insurance carriers under insurance or self-insurance
arrangements, (viii) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, (ix) any materialmen's, carriers',
mechanics', workmen's, repairmen's or other like Liens arising in the ordinary
course of business in respect of obligations which are not yet overdue or which
are being contested in good faith by appropriate proceedings, (x) Liens
arising in connection with surety, appeal and similar bonds incidental to the
conduct of litigation, (xi) Liens arising in connection with bid, performance
or similar bonds which do not exceed in the aggregate $5,000,000, (xii)
easements, rights of way, general real estate taxes not yet due and payable,
municipal and zoning restrictions, restrictions on the use of real property
and defects and irregularities in the title hereto and (xiii) any extension,
renewal, substitution or replacement (or successive extensions, renewals,
substitutions or replacements), in whole or in part, of any Lien referred to
in the foregoing clauses (i) through (xii), inclusive, or the Debt secured
thereby (Section 4.5(a)).
Notwithstanding the foregoing, the Company and any Subsidiary may,
without equally and ratably securing the Securities, create, issue, assume,
incur or guarantee secured Debt (which would otherwise be subject to the
foregoing Lien restrictions) in an aggregate amount which, together with all
other such secured Debt of the Company and its Subsidiaries (that is, not
including secured Debt of the Company and its Subsidiaries permitted pursuant
to the preceding paragraph) does not at any time exceed 10% of Consolidated
Net Tangible Assets of the Company (Section 4.5(b)).
The term "Principal Property" of any Person means, at any date of
determination, (a) any line of segment of track, together with signaling or
communication systems appurtenant thereto, owned by such Person as of such
date of determination over which at least 10 million gross tons of revenue
freight moved in the calendar year next preceding such date of determination;
(b) all locomotives and freight cars owned by the such Person as of such date
of determination; (c) all freight yards and repair facilities owned by such
Person as of such date of determination; and (d) all real estate related to
the property described in (a), (b) or (c) owned by such Person as of such date
of determination (Section 1.1).
The term "Consolidated Net Tangible Assets" with respect to any
Person means, as at any date of determination, the total amount of assets
(less applicable reserves and other properly deductible items) of such Person
and its Subsidiaries determined on a consolidated basis in conformity with
GAAP and set forth on the most recent consolidated balance sheet of such
Person and its Subsidiaries preceding such date of determination after
deducting therefrom (i) all current liabilities (excluding any thereof which
are by their terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after such date of determination), (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, and (iii) appropriate adjustments on
account of minority interests of other persons holding stock in the
Subsidiaries, all as determined on a consolidated basis in conformity with
GAAP and set forth on such most recent consolidated balance sheet of such
Person and its Subsidiaries (Section 1.1).
Modification of the Indenture
The Indenture contains provisions permitting the Company and the
Trustee to enter into one or more supplemental indentures without the consent
of the holders of Securities in order (i) to evidence the succession of
another corporation to the Company and the assumption of the covenants of the
Company by such successor, (ii) to comply with any requirements of the
Commission in connection with the qualification of the Indenture under the
Trust Indenture Act of 1939 as then in effect, (iii) to provide for a
successor Trustee with respect to the Securities of all or any series, (iv) to
establish the forms and terms of the Securities of any series, (v) to provide
for uncertificated or Unregistered Securities, or (vi) to cure any ambiguity
or correct any mistake or to make any change that does not materially
adversely affect the legal rights of any holder of the Securities under the
Indenture (Section 9.1).
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the then outstanding Securities of any series, to execute
supplemental indentures adding any provisions to or changing or eliminating
any of the provisions of the Indenture or any supplemental indenture or
modifying the rights of the holders of such Securities, except that no such
supplemental indenture, or any amendment or waiver, may, without the consent
of the holder of each Security, (i) extend the stated maturity of the
principal of, or any sinking fund obligation or any installment of interest
on, such holder's Security, or reduce the principal amount thereof or the rate
of interest thereon (including any amount in respect of original issue
discount), or any premium payable with respect thereto, or adversely affect
the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of the
Company or such Holder, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof or the amount thereof provable in bankruptcy, or change
any place of payment where, or the currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the due date
therefor, or change the manner of determining any of the foregoing; (ii)
reduce the percentage in principal amount of outstanding Securities of the
relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions
of this Indenture or certain Defaults and their consequences provided for in
this Indenture; (iii) waive a Default in the payment of principal of or
interest on any Security of such Holder; (iv) change any obligation of the
Company to maintain an office or agency in the places and for the purposes in
the Indenture provided; or (v) modify any of the foregoing provisions, except
to increase any such percentage or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby (Section 9.2). After a
supplemental indenture, amendment or waiver becomes effective, the Company
shall mail a notice to the holders of the Securities affected thereby briefly
describing the supplemental indenture, amendment or waiver (Section 9.2).
Defeasance and Covenant Defeasance
Unless the terms of the Securities of any series provide otherwise,
the Company may elect either (1) to defease and be discharged from any and all
obligations with respect to (a) Securities of any series payable within one
year or (b) other Securities of any series upon certain additional conditions
described below (except as otherwise provided in the Indenture) ("defeasance")
or (2) to be released from its obligations with respect to certain covenants
applicable to the Securities of any series ("covenant defeasance"), upon the
deposit with the Trustee, in trust for such purpose, of money and/or U.S.
Government Obligations which through the payment of principal and interest in
accordance with their terms will provide money in an amount sufficient without
reinvestment to pay the principal of and interest on the Securities and the
satisfaction of certain other conditions set forth in the Indenture. As a
condition to defeasance of any Securities of any series payable later than one
year from the time of defeasance, the Company must deliver to the Trustee an
Opinion of Counsel or a ruling of the Internal Revenue Service to the effect
that the holders of the Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be subject
to Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such defeasance or covenant
defeasance had not occurred (Article 8).
The Company may exercise either defeasance option with respect to the
Securities of any series notwithstanding its prior exercise of its covenant
defeasance option with respect thereto. If the Company exercises its
defeasance option, payment of the Securities of any series may not be
accelerated because of a Default or an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities of any
series may not be accelerated by reason of an Event of Default with respect to
the covenants to which such covenant defeasance is applicable. If such
acceleration were to occur by reason of another Event of Default, the
realizable value at the acceleration date of the money and U.S. Government
Obligations in the defeasance trust could be less than the principal and
interest then due on the Securities, in that the required deposit in the
defeasance trust is based upon scheduled cash flow rather than market value,
which will vary depending upon interest rates and other factors. The Company
will, however, remain liable for such payments at the time of the acceleration.
Governing Law
The Indenture and the Securities are governed by and construed in
accordance with the laws of the state of New York (Section 10.7).
The Trustee
The First National Bank of Boston is the Trustee under the Indenture.
The Company also maintains banking and other commercial relationships with the
Trustee and its affiliates in the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may sell all or part of the Securities from time to time
on terms determined at the time such Securities are offered for sale. The
Securities may be sold (i) through underwriters or dealers; (ii) through
agents; (iii) directly to one or more purchasers; or (iv) through a
combination of any such methods of sale. The Prospectus Supplement relating
to the particular series of the Securities offered thereby will set forth the
terms of the offering of such series of the Securities, including the name or
names of any underwriters, dealers or agents, the purchase price of such
Securities, the proceeds to the Company from such sale, any underwriting
discounts and other items constituting underwriters' or agents' compensation,
any initial public offering price, any discounts or sales agent's commissions
or concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the Securities of such series may be listed.
The distribution of the Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
If underwriters are used in the sale, the Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price, or at varying prices determined at the time of sale.
The Securities may be offered to the public through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the related Prospectus Supplement, the
obligations of the underwriters to purchase Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the Securities of a series if any are purchased. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid
to dealers may be changed from time to time.
If a dealer is utilized in the sale of the Securities in respect of
which this Prospectus is delivered, the Company will sell such Securities to
the public at varying prices to be determined by such dealer at the time of
resale. In the case of a sale to a dealer, the Company will provide a
Prospectus Supplement stating the name of such dealer, the amount of
Securities purchased and the price paid.
Offers to purchase Securities may be solicited directly by the
Company or by agents designated by the Company from time to time. Any such
agent, which may be deemed to be an underwriter as that term is defined in the
Securities Act, involved in the offer or sale of the Securities in respect of
which this Prospectus is delivered will be named in, and any commissions
payable by the Company to such agent will be set forth in, a Prospectus
Supplement. Unless otherwise indicated in such Prospectus Supplement, any
such agent will be acting on a best efforts basis.
Agents and underwriters may from time to time purchase and sell
Securities in the secondary market, but are not obligated to do so, and there
can be no assurance that there will be a secondary market for the Securities
or liquidity in the secondary market if one develops. From time to time,
agents and underwriters may make a market in the Securities.
Dealers, underwriters or agents may be entitled under agreements
which may be entered into with the Company to indemnification by the Company
against certain civil liabilities, including liabilities under the Securities
Act. Such dealers, underwriters or agents may be customers of, engage in
transactions with, or perform services for, the Company in the ordinary course
of business.
The place and time of delivery for the Securities in respect of which
this Prospectus is delivered will be set forth in the accompanying Prospectus
Supplement.
LEGAL MATTERS
Certain matters relating to the Securities will be passed upon for
the Company by Davis Polk & Wardwell, New York, New York. Certain legal
matters will be passed upon for the underwriters, if any, by Simpson Thacher &
Bartlett (a partnership which includes professional corporations), New York,
New York.
EXPERTS
The consolidated financial statements and financial statement
schedules of the Company included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1994, which are incorporated by reference in
this Registration Statement and Prospectus, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report
with respect thereto, which is incorporated by reference herein in reliance
upon the authority of said firm as experts in accounting and auditing in
giving said report. Reference is made to said report, which includes an
explanatory paragraph with respect to the Company's change in its methods of
accounting for income taxes and for postretirement, health care and
postemployment benefits as discussed in Notes 11 and 10, respectively, to the
consolidated financial statements.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuances and Distribution
The following table sets forth the fees and expenses payable by
Illinois Central Railroad Company in connection with the issuance and
distribution of the Securities other than underwriting discounts and
commissions. All of such expenses except the Securities and Exchange
Commission registration fee are estimated:
Securities and Exchange Commission registration fee.............$ 68,966
Trustees' fees and expenses...................................... 11,750
Printing and engraving expenses.................................. 100,000
Accounting fees and expenses..................................... 65,000
Blue Sky fees and expenses....................................... 15,000
Legal fees and expenses.......................................... 140,000
Miscellaneous...................................................$ 37,716
---------
Total........................................................$ 437,716
=========
Item 15. Indemnification of Directors and Officers
Article Tenth ("Article Tenth") of the Company's Certificate of
Incorporation (the "Certificate") limits the scope of personal liability of
the Company's directors to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. In addition, Article VI
of the By-Laws of the Company ("Article VI") defines the rights of Company
directors and officers to indemnification by the Company in the event of
personal liability or expenses incurred by them as a result of certain
litigation against them. Set forth below are descriptions of Article Tenth
and Article VI.
Elimination of Liability in Certain Circumstances
Article Tenth protects the directors against personal liability for
breaches of their duty of care. Such Article absolves directors of liability
for negligence in the performance of their duties, including gross negligence.
Directors continue to remain liable for breaches of their duty of loyalty to
the Company and its stockholders as well as for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law
and transactions from which a director derived improper personal benefit. In
addition, Article Tenth does not absolve directors liable for unlawful
dividends or stock repurchases or redemptions to which an express negligence
standard presently applies under the Delaware General Corporation Law (the
"Delaware Law"). Also, there may be certain liabilities, such as those under
the federal securities laws or other state or federal laws, which a court may
hold are unaffected by Article Tenth.
Article Tenth further provides that if the Delaware Law is hereafter
amended to further eliminate or limit the liability of directors, then the
liability of a director of the Company shall be eliminated or limited, without
further stockholder action, to the fullest extent permitted by the Delaware
Law as so amended.
Although Article Tenth provides directors with protection against
personal liability for monetary damages for breaches of the duty of care, it
does not eliminate the directors' duty of care. Accordingly, Article Tenth
would have no effect on the availability of equitable remedies such as an
injunction to stop a proposed action or recision of a contract based upon a
director's breach of the duty of care.
Although both directors and officers of the Company are covered by
indemnification provisions under Article VI (see below), Article Tenth limits
liability only with respect to a person acting in the capacity of a director.
Indemnification and Insurance
Article VI provides that the Company shall indemnify and hold
harmless each person who was or is made a party to, or is involved in, any
action, suit or proceeding by reason of the fact that such person is or was a
director or officer of the Company (or was serving at the request of the
Company as a director, officer, employee or agent for another entity,
including service with respect to employee benefit plans of the Company) while
serving in such capacity, to the fullest extent permitted or allowed by
Delaware Law, as in effect (or, to the extent indemnification is broadened, as
it may be amended) against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
to be paid in settlement) reasonably incurred by such person in connection
therewith. Article VI provides that the right conferred thereby shall be a
contract right and shall include the right to be paid by the Company for the
expenses incurred in defending the proceedings specified above, in advance of
their final disposition, provided that, if the Delaware Law so requires, such
payment, in the case of a director or officer in his or her capacity as such,
shall only be made upon delivery to the Company by the indemnified party of an
undertaking to repay all amounts so advanced if it shall ultimately be
determined that the person receiving such payments is not entitled to be
indemnified under such provision or otherwise. Article VI provides that the
Company may, by action of its Board of Directors, provide indemnification to
its employees and agents with the same scope and effect as the foregoing
indemnification of directors and officers.
Article VI provides that persons indemnified thereunder may bring
suit against the Company to recover unpaid amounts claimed thereunder, and
that if such suit is successful, the expense of bringing such a suit shall be
reimbursed by the Company. Article VI further provides that while it is a
defense to such a suit that the person claiming the indemnification has not
met the standard of conduct making indemnification permissible under the
Delaware Law, the burden of proving the defense shall be on the Company and
neither the failure of the Company to have made a determination that
indemnification is proper, nor an actual determination that the claimant has
not met the applicable standard of conduct shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
Article VI provides that the right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred therein shall not be exclusive of any other right which
any person may have or acquire under any statute, provision of the Company's
Certificate or By-Laws, or otherwise. Finally, Article VI provides that the
Company may maintain insurance, at its expense, to protect itself and any of
its directors, officers, employees or agents against any expense, liability or
loss, whether or not the Company would have the power to indemnify such person
against such expenses, liability or loss under the Delaware Law. The Company
expects to purchase insurance on behalf of directors, officers and other
persons which may cover certain such expenses, liability or loss.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Reg. S-K
Exhibits Description
- -------- -----------
1 --Form of Underwriting Agreement.
4.1 --Form of Indenture dated as of April 1,
1995 (the "Indenture") between Illinois Central Railroad
Company and The First National Bank of Boston, Trustee.
5 --Opinion of Davis Polk & Wardwell (legality opinion).
12.1 --Computation of ratio of earnings to fixed charges for
Illinois Central Railroad Company and Subsidiaries.
23.1 --Consent of Arthur Andersen LLP.
23.2 --Consent of Davis Polk & Wardwell (included in
Exhibit 5).
25 --Statement of eligibility and qualification on Form T-1 of
The First National Bank of Boston with respect to the
Indenture.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, when applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions, or otherwise, the registrant has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
(d) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registration pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(e) For the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of Chicago, State of Illinois on the
11th day of April, 1995.
ILLINOIS CENTRAL RAILROAD COMPANY
By /s/ Dale W. Phillips
--------------------------------
Dale W. Phillips, Vice President
& Chief Financial Officer
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
constitutes and appoints E. Hunter Harrison, Ronald A. Lane and Dale W.
Phillips, and any agent for service named in this Registration Statement and
each of them, his, her or its true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him, her or it and in
his, her, or its name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he, she, or it might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Gilbert H. Lamphere Chairman of the Board, April 11, 1995
- -------------------------- Director
Gilbert H. Lamphere
/s/ E. Hunter Harrison President and Chief April 11, 1995
- -------------------------- Executive Officer
E. Hunter Harrison (principal executive
officer), Director
/s/ Dale W. Phillips Vice President and April 11, 1995
- -------------------------- Chief Financial Officer
Dale W. Phillips (principal financial
officer)
/s/ John V. Mulvaney Controller April 11, 1995
- -------------------------- (principal accounting
John V. Mulvaney officer)
/s/ Ronald A Lane Director April 11, 1995
- --------------------------
Ronald A. Lane
/s/ John D. McPherson Director April 11, 1995
- --------------------------
John D. McPherson
/s/ Gerald F. Mohan Director April 11, 1995
- --------------------------
Gerald F. Mohan
EXHIBIT INDEX
Reg. S-K Sequentially
Exhibits Description Numbered Page
- -------- ----------- -------------
1 -- Form of Underwriting Agreement
4.1 -- Form of Indenture
5 -- Opinion of Davis Polk & Wardwell
(legality opinion)
12.1 -- Computation of ratio of earnings to
fixed charges for Illinois Central
Railroad Company and Subsidiaries
23.1 -- Consent of Arthur Andersen & Co.
23.2 -- Consent of Davis Polk & Wardwell (included in
Exhibit 5)
25 -- Statement of eligibility and qualification on
Form T-1 of The First National Bank of Boston
with respect to the Indenture
EXHIBIT 1
ILLINOIS CENTRAL RAILROAD COMPANY
Debt Securities
FORM OF UNDERWRITING AGREEMENT BASIC PROVISIONS
1. Introduction. Illinois Central Railroad Company, a Delaware
corporation (the "Company"), proposes to issue and sell from time to time
certain of its debt securities registered under the registration statement
referred to in Section 2(a) (the "Registered Securities"). The Registered
Securities will be issued under an indenture (the "Indenture"), dated as of
April 1, 1995 between the Company and The First National Bank of Boston, as
Trustee, in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with all
such terms for any particular series of the Registered Securities being
determined at the time of sale. Particular series of the Registered
Securities will be sold pursuant to a Terms Agreement referred to in Section
3, for resale in accordance with the terms determined at the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities." The firm or firms which agree to
purchase the Securities are hereinafter referred to as the "Underwriters" of
such Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives," as used in this Underwriting
Agreement Basic Provisions shall mean the Underwriters.
2. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (Registration No.
33- ) with respect to the Registered Securities (i) has been
prepared by the Company in conformity with the requirements of the
United States Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of
the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) has been filed by the Company with the
Commission under the Securities Act and (iii) has become effective
under the Securities Act. As provided in Section 4(b), a prospectus
supplement reflecting the terms of the Securities, the terms of the
offering thereof and the other matters set forth therein will be
prepared and filed pursuant to Rule 424 under the Securities Act. In
addition, a preliminary prospectus supplement reflecting the terms of
the Securities, the terms of the offering thereof, and the other
matters set forth therein may also be prepared and filed pursuant to
Rule 424 under the Securities Act. Such prospectus supplement, in
the form filed after the date hereof pursuant to Rule 424, is herein
referred to as the "Prospectus Supplement", and any such preliminary
prospectus supplement in the form filed after the date hereof
pursuant to Rule 424 is hereafter referred to as the "Preliminary
Prospectus Supplement." Any prospectus accompanied by a Preliminary
Prospectus Supplement is hereinafter referred to, collectively with
such Preliminary Prospectus Supplement, as a "Preliminary
Prospectus." The registration statement referred to in this Section
2(a), as amended at the time of execution of the applicable Terms
Agreement, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement", and the basic prospectus included therein relating to all
offerings of securities under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein called the
"Prospectus", except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus
Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and
as supplemented by the Prospectus Supplement, in either case
including the documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference therein. Any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual or interim report of the
Company or other documents filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement. The Commission has not issued any order suspending the
effectiveness of the Registration Statement, and no stop-order has
been initiated or threatened by the Commission.
(b) On the effective date of the Registration Statement relating
to the Registered Securities, such Registration Statement conformed in
all material respects to the requirements of the Securities Act, the
Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission under such acts and did not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and on the date of each Terms Agreement referred to in
Section 3, the Registration Statement and the Prospectus will conform
in all material respects to the requirements of the Securities Act, the
Trust Indenture Act and the Rules and Regulations, and none of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that
the Company makes no representation or warranty as to that part of the
Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of The First
National Bank of Boston, Trustee under the Indenture or information
contained in or omitted from the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
become effective or are filed with Commission, as the case may be, will
conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) The Company has all necessary corporate power and authority
to execute and deliver the Terms Agreement (including this Underwriting
Agreement Basic Provisions) and perform its obligations thereunder; the
Terms Agreement (including this Underwriting Agreement Basic Provisions)
has been duly authorized, executed and delivered by the Company,
constitutes the valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing.
(e) Neither the Company nor any of its subsidiaries (as defined
in Section 14) is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company or the
Company and its subsidiaries, taken as a whole; the execution, delivery
and performance of the Terms Agreement (including this Underwriting
Agreement Basic Provisions) and compliance by the Company with the
provisions of the Indenture and the Securities will not conflict with,
result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company or any of its subsidiaries
pursuant to the terms of, or constitute a material default under, any
material agreement, indenture or instrument, or result in a violation of
the corporate charter or by-laws of the Company or any of its
subsidiaries or any order, rule, or regulation of any court or
governmental agency having jurisdiction over the Company, any of its
subsidiaries or their respective properties; and except as required by
the Securities Act, the Trust Indenture Act, the Interstate Commerce
Act, and applicable state securities laws, no consent, authorization or
order of, or filing or registration with, any court or governmental
agency in the United States (including any state regulatory agency
having jurisdiction over the Company or any of its subsidiaries), which
has not been made or obtained, is required for the execution, delivery
and performance of the Terms Agreement (including this Underwriting
Agreement Basic Provisions) or compliance with the provisions of the
Indenture and the Securities by the Company.
(f) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse
change in, or any adverse development which materially affects, the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole from the
dates as of which information is given in the Registration Statement and
the Prospectus; and since such date, there has not been any change in
the capital stock or long term debt of the Company except as described
in the Registration Statement and the Prospectus.
(g) Arthur Andersen & Co., whose reports appear in the
Registration Statement and the Prospectus or are incorporated by
reference therein, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(h) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due execution and delivery
thereof by the Trustee, constitutes a valid and binding agreement of the
Company and is enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) or
an implied covenant of good faith and fair dealing; the Registered
Securities have been duly authorized by the Company, and, when the
Securities are authenticated in the manner set forth in the Indenture
and are issued and delivered against payment therefor as provided herein
and the Terms Agreement relating to such Securities, such Securities
will be duly executed, and, assuming due authentication by the Trustee,
duly issued and delivered by the Company, and will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and will be enforceable against the Company in accordance with
their terms and the terms of the Indenture, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good faith and
fair dealing; and the Securities and the Indenture will conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and in good standing as foreign corporations in
each jurisdiction in which their respective ownership of property or the
conduct of their respective businesses requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged; all of the outstanding shares of
capital stock of each of the Company's subsidiaries are validly issued
and outstanding, fully paid and non-assessable and, except as described
in the Registration Statement and the Prospectus, are owned, directly or
indirectly, by the Company free and clear of all liens, claims, or
encumbrances; and none of the subsidiaries of the Company is a
"significant subsidiary" as such term is defined in the Rules and
Regulations.
(j) Except as described in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the
Company or any of its subsidiaries which might result in any material
adverse change in the business, properties, financial condition, results
of operations or prospects of the Company or of the Company and its
subsidiaries taken as a whole, or which could reasonably be expected to
adversely affect the consummation of the transactions contemplated
hereby or by the related Terms Agreement.
(k) Except as otherwise disclosed therein, the financial
statements filed as part of the Registration Statement or included or
incorporated by reference in any Preliminary Prospectus or the
Prospectus present fairly the financial condition and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and the audited consolidated financial
statements included therein have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(l) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been filed as
exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(m) There are no holders of securities of the Company who, by
reason of the filing of the Registration Statement under the Securities
Act or the execution by the Company of any Terms Agreement (including
this Underwriting Agreement Basic Provisions), have the right to request
or demand that the Company register under the Securities Act securities
held by them.
3. Purchase and Offering of the Securities. The obligation of
the Underwriters to purchase the Securities will be evidenced by an exchange
of telegraphic or other written communications (the "Terms Agreement") at the
time the Company determines to sell the Securities. The Terms Agreement will
incorporate by reference the provisions of this Underwriting Agreement Basic
Provisions, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Securities as set forth in
Schedule II to the Terms Agreement, including, but not limited to, interest
rate, maturity, any redemption provisions and any sinking fund requirements.
The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than five full
business days thereafter as the Representatives and the Company agree as the
time for payment and delivery, being herein and in the Terms Agreement
referred to as the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as
set forth in the Prospectus.
4. Further Agreements of the Company. The Company agrees to
furnish promptly to Simpson Thacher & Bartlett, counsel for the Underwriters,
one signed copy of the registration statement relating to the Registered
Securities, including all exhibits, in the form it became effective and of all
amendments thereto and, in connection with each offering of Securities, the
Company further agrees:
(a) To deliver promptly to each Underwriter and counsel to the
Underwriters such number of conformed copies of the Registration
Statement as originally filed and each amendment thereto (in each case
excluding exhibits other than the computation of the ratio of earnings
to fixed charges, the Indenture and this Underwriting Agreement Basic
Provisions) and of each Preliminary Prospectus, the Prospectus and any
documents incorporated by reference in the Preliminary Prospectus or
Prospectus (excluding exhibits thereto) and any amended or supplemented
Prospectus, as each Underwriter and counsel to the Underwriters may
request;
(b) To prepare a Prospectus Supplement relating to the applicable
Securities in a form approved by the Underwriters and to file the
Prospectus, including the Prospectus Supplement, promptly with the
Commission pursuant to Rule 424(b)(1) or, if consented to by the
Underwriters pursuant to Rule 424(b)(4) and, during the period of time
when a Prospectus is, in the opinion of counsel for the Underwriters,
required to be delivered by an Underwriter or dealer, (i) to file any
amendment to the Registration Statement or any supplement to the
Prospectus, (ii) to file under the Exchange Act any document
incorporated by reference in the Prospectus that may, in the reasonable
judgment of the Company or the Underwriters, be required by the
Securities Act or requested by the Commission and (iii) to file promptly
with the Commission all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus;
(c) Prior to filing with the Commission any amendment to the
Registration Statement, supplement to the Prospectus, any document
incorporated by reference in the Prospectus, or to filing any Prospectus
pursuant to Rule 424(b)(1), (b)(3) or (b)(4) of the Rules and
Regulations, to furnish a copy thereof to the Underwriters and counsel
for the Underwriters and obtain the consent of the Underwriters to the
filing;
(d) To advise the Underwriters and counsel to the Underwriters
promptly (i) when any post-effective amendment to the Registration
Statement becomes effective, (ii) of any request or proposed request by
the Commission for an amendment to the Registration Statement, a
supplement to the Prospectus or any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threat
of any stop order proceeding, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose, and (v) of the happening of any event
which makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus, or which requires the making
of a change in the Registration Statement or the Prospectus in order to
make any material statement therein not misleading;
(e) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, suspending or preventing
the use of any Preliminary Prospectus or Prospectuses, or if the
qualification of the Securities for sale in any jurisdiction shall be
suspended, to make every reasonable effort to obtain the lifting of that
order or suspension at the earliest possible time;
(f) As soon as practicable, but not later than 16 months after
the date of each Terms Agreement, to make generally available to its
security holders and to the Underwriters an earning statement of the
Company and its subsidiaries, conforming with the requirements of
Section 11(a) of the Securities Act, covering a period of at least 12
months beginning on the first day of the first fiscal quarter of the
Company commencing after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such Terms Agreement and (iii) the date
of the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such Terms Agreement;
(g) For a period of three years after the date of any Terms
Agreement, to furnish to the Underwriters copies of all public reports
and all reports and financial statements furnished by the Company to the
principal national securities exchange or quotation system upon which
its Common Stock may be listed pursuant to the requirements of or
agreements with such exchange or system or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Underwriters may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Securities;
(i) Except with the prior written consent of the Underwriters not
to sell, cause the sale of, offer or contract to sell, file a
registration statement under the Securities Act covering, sell or grant
options, rights or warrants with respect to or otherwise dispose of,
directly or indirectly, any debt securities of the Company (or any
securities convertible into or exchangeable for such debt securities),
except with respect to any existing employee benefit or compensation
plans, within 90 days after the date of any Terms Agreement;
(j) The Company has not taken and agrees that it will not take,
directly or indirectly, any action which might reasonably be expected to
cause or result in (i) stabilization of the price of the Securities to
facilitate the sale or resale of the Securities or (ii) manipulation of
the price of the Securities; and
(k) To apply the net proceeds from the sale of the Securities
being sold by the Company as set forth in the Prospectus.
5. Expenses. The Company agrees to pay the costs incident to the
authorization, issuance, sale and delivery of the Securities to be sold to the
Underwriters and any taxes payable in that connection; the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto and any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein; the costs of
distributing the Registration Statement as originally filed and each amendment
and any post-effective amendments thereof (including exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference in any of the foregoing
documents; the costs of printing the Securities, the Terms Agreement
(including this Underwriting Agreement Basic Provisions), and other
underwriting and selling group documents and the Indenture; the fees and
expenses of qualifying the Securities under the securities laws of the several
jurisdictions as provided in Section 4(h) and of preparing and printing a Blue
Sky Memorandum and a memorandum concerning the legality of the Securities as
an investment (including reasonable related fees and expenses of counsel to
the Underwriters); the costs of any filings with the National Association of
Securities Dealers, Inc.; any fees charged by securities rating services for
rating the Registered Securities; any fees and expenses of the Trustee
(including reasonable fees and expenses of counsel to the Trustee) in
connection with the Indenture and the transactions contemplated thereby; the
fees and expenses of counsel to the Underwriters related to the preparation
and filing of the Registration Statement; and all other costs and expenses
incident to the performance of the obligations of the Company under this
Underwriting Agreement Basic Provisions; provided that, except as provided in
this Section and in Sections 8 and 10, the Underwriters shall pay the fees and
expenses of their counsel related to any offering of the Securities, any
transfer taxes on the Securities which they may sell and the expenses of
advertising any offering of the Securities made by the Underwriters.
6. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy when
made and on the Delivery Date of the representations and warranties of the
Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 4(b) of this Underwriting
Agreement Basic Provisions; at or before the Delivery Date no stop order
suspending the effectiveness of the Registration Statement shall have
been issued, and prior to that time no stop order proceeding shall have
been initiated or threatened by the Commission; any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with
or otherwise satisfied; and the Company shall not have filed with the
Commission the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus without the consent of the
Underwriters.
(b) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus or (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus.
(c) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Simpson Thacher &
Bartlett, counsel to the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(d) All corporate proceedings and other legal matters incident to
the authorization, form and validity of the Terms Agreement (including
this Underwriting Agreement Basic Provisions), the Indenture and the
Securities and the form of Registration Statement and the Prospectus,
other than financial statements and other financial data, and all other
legal matters relating to the Terms Agreement (including this
Underwriting Agreement Basic Provisions) and the transactions
contemplated thereby shall be satisfactory in all respects to Simpson
Thacher & Bartlett, counsel to the Underwriters, and the Company shall
have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters, and
Simpson Thacher & Bartlett shall have furnished the Underwriters their
favorable opinion with respect to such matters and such additional
matters as the Underwriters may reasonably request.
(e) Davis Polk & Wardwell shall have furnished to the
Representatives their opinion addressed to the Underwriters and dated
the Delivery Date as counsel to the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of its jurisdiction
of incorporation;
(ii) The Company has all necessary corporate power to
execute and deliver the Terms Agreement (including this
Underwriting Agreement Basic Provisions) and to perform its
obligations thereunder;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, when executed by the Trustee, will constitute a
valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good
faith and fair dealing;
(iv) The Securities have been duly authorized, and assuming
due execution, authentication and delivery of the Securities in
accordance with the provisions of the Indenture and delivery of
and payment for the Securities by the Underwriter in accordance
with the Terms Agreement (including this Underwriting Agreement
Basic Provisions), will constitute valid and binding obligations
of the Company, entitled to the benefits of the Indenture,
enforceable in accordance with their terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing;
(v) The Securities and the Indenture conform in all
material respects to the statements concerning them in the
Registration Statement and the Prospectus;
(vi) The Registration Statement has been declared effective
under the Securities Act; any required filing of the Prospectus
pursuant to Rule 424(b) of the Rules and Regulations has been made
within the time period required by Rule 424(b) of the Rules and
Regulations; and no stop-order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or, to the knowledge of such counsel, threatened
by the Commission;
(vii) The Registration Statement and the Prospectus (other
than the financial statements and related schedules therein, as to
which such counsel are not called upon to express an opinion)
comply as to form in all material respects with the requirements
of the Securities Act and the Rules and Regulations thereunder,
and the documents incorporated by reference in the Prospectus and
any further amendment or supplement to any such incorporated
document made by the Company prior to the Delivery Date (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements
of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder;
(viii) The statements made in the Prospectus under the
captions "Description of Securities", insofar as they purport to
summarize the provisions of documents or agreements specifically
referred to therein, fairly present the information called for
with respect thereto by the Form S-3; and
(ix) The Terms Agreement (including the provisions of this
Underwriting Agreement Basic Provisions) has been duly authorized,
executed and delivered by the Company. The execution, delivery
and performance of the Terms Agreement (including the provisions
of this Underwriting Agreement Basic Provisions), and the
compliance by the Company with the provisions of the Indenture and
the Securities, will not conflict with or result in a violation of
the corporate charter or by-laws of the Company, or any law, rule
or regulation or to such counsel's knowledge without independent
investigation, conflict with or result in the violation of any
order or determination of any arbitrator, court or governmental
agency having jurisdiction over the Company or any of the
Company's subsidiaries the effect of which would be material and
adverse to the Company and its subsidiaries taken as a whole.
Except as required by the Securities Act, the Trust Indenture Act,
applicable state securities laws or the Interstate Commerce Act,
no consent, authorization or order of, or filing or registration
with, any court or governmental agency in the United States, which
has not been made or obtained, is required for the execution,
delivery and performance of the Terms Agreement (including the
provisions of this Underwriting Agreement Basic Provisions), and
compliance with the provisions of the Indenture and the Securities
by the Company.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law of
the State of Delaware. Such counsel shall also have furnished to the
Underwriters a statement, addressed to the Underwriters, dated the Delivery
Date to the effect that (x) such counsel has acted as counsel to the Company
only in connection with the preparation of the Registration Statement and (y)
based on the foregoing, no facts have come to the attention of such counsel
which lead them to believe that (I) the Registration Statement (other than the
financial statements and related schedules therein, as to which such counsel
are not called upon to express a belief), as of the Effective Date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (except as aforesaid), as
amended and supplemented, if applicable, contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (II) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Company prior to the
Delivery Date, when they became effective or were filed with the Commission,
as the case may be, contained, in the case of a registration statement which
became effective under the Securities Act, any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus except for the statements made in the Prospectus under the caption
"Description of Securities" insofar as such statements relate to the
Securities and concern legal matters. The foregoing opinion and statement may
also be qualified by a statement to the effect that such counsel has rendered
no opinion with respect to the United States Interstate Commerce Act and has
relied, without independent investigation, upon the opinion of Hopkins &
Sutter dated the Delivery Date as to the matters set forth therein.
(f) Ronald Lane, General Counsel of the Company, shall have
furnished to the Representatives his opinion addressed to the Underwriters and
dated the Delivery Date as counsel to the Company, to the effect that:
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign
corporations in all jurisdictions in which their respective ownership of
property or the conduct of their respective businesses requires such
qualification (except where the failure so to qualify would not have a
material adverse effect upon the Company or the Company and its
subsidiaries taken as a whole), and have all power and authority
necessary to own their respective properties and conduct the businesses
in which they are engaged as described in the Prospectus except to the
extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole. All the outstanding shares of capital stock of each
of the Company's subsidiaries have been duly authorized and are validly
issued and outstanding, fully paid and non-assessable and are owned
directly by the Company or a wholly-owned subsidiary of the Company and,
except as described in the Registration Statement and Prospectus, are
free and clear of any lien, claim, encumbrance, restriction, preemptive
rights or any other claim of any third party known to such counsel;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and the Trustee and duly qualified under the
Trust Indenture Act and is a valid and binding instrument of the Company
and is enforceable against the Company in accordance with its terms;
(iii) The Securities have been duly authorized, and assuming due
execution, authentication and delivery of the Securities in accordance
with the provisions of the Indenture and delivery of and payment for the
Securities by the Underwriters in accordance with the Terms Agreement
(including this Underwriting Agreement Basic Provisions), will be
validly issued and binding obligations of the Company, entitled to the
benefits of the Indenture and are enforceable against the Company in
accordance with their terms;
(iv) The Securities and the Indenture conform in all material
respects to the statements concerning them in the Registration Statement
and the Prospectus;
(v) There are no legal or governmental proceedings pending or,
to the best of such counsel's knowledge, threatened to which the Company
or any of its subsidiaries is a party, which would have a material
adverse effect on the business, properties, financial condition, results
of operations or prospects of the Company and its subsidiaries taken as
a whole, or which are required to be disclosed in the Registration
Statement or the Prospectus and which are not disclosed and correctly
summarized therein;
(vi) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been filed as
exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations;
(vii) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or, to the best of such
counsel's knowledge, in default under any material agreement, indenture
or instrument, the effect of which would be material and adverse to the
Company and its subsidiaries, taken as a whole;
(viii) The Terms Agreement (including the provisions of this
Underwriting Agreement Basic Provisions) has been duly authorized,
executed and delivered by the Company; the execution, delivery and
performance of the Terms Agreement (including the provisions of this
Underwriting Agreement Basic Provisions) and compliance by the Company
with the provisions of the Indenture and the Securities will not
conflict with, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company or any of
its subsidiaries pursuant to the terms of, or constitute a default
under, any agreement, indenture or instrument binding upon the Company
and known to such counsel, or result in a violation of the corporate
charter or by-laws of the Company or any of its subsidiaries or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their
property, the effect of which would be material and adverse to the
Company and its subsidiaries, taken as a whole; and no consent,
authorization or order of, or filing or registration with, any court or
governmental agency, which has not been made or obtained, is required
for the execution, delivery and performance of the Terms Agreement
(including the provisions of this Underwriting Agreement Basic
Provisions), and compliance with the provisions of the Indenture and the
Securities by the Company, except such as may be required by the
Securities Act, state securities laws or the Interstate Commerce Act; and
(ix) The execution and delivery of the Terms Agreement (including
the provisions of this Underwriting Agreement Basic Provisions) do not
conflict with, or constitute a violation of, any order, rule or
regulation of the Illinois Commerce Commission and no consent,
authorization or order of, or filing or registration with, the Illinois
Commerce Commission is required for the performance by the Company of
the Terms Agreement (including the provisions of this Underwriting
Agreement Basic Provisions).
In rendering such opinion, such counsel may state that his opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of Illinois and the General Corporation Law of
Delaware. Such counsel shall also have furnished to the Underwriters a
statement, addressed to the Underwriters, dated the Delivery Date to the
effect that (x) such counsel has acted as counsel to the Company on a regular
basis and has acted as counsel to the Company in connection with the
preparation of the Registration Statement and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead him to believe
that the Registration Statement, as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus, as amended or supplemented, if applicable,
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The foregoing opinion and statement may be qualified by a
statement to the effect that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for the statements made in the
Prospectus under the caption "Description of Securities" insofar as such
statements relate to the Securities and concern legal matters. The foregoing
opinion and statement may also be qualified by a statement to the effect that
such counsel has rendered no opinion with respect to the United States
Interstate Commerce Act and has relied, without independent investigation,
upon the opinion of Hopkins & Sutter dated the Delivery Date as to the matters
set forth therein.
(g) Hopkins & Sutter shall have furnished to the Representatives
their opinion addressed to the Underwriters and dated the Delivery Date, as
special counsel to the Company, to the effect that:
(i) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Underwriting Agreement Basic
Provisions) will not conflict with or result in a violation of any
order, rule or regulation of the Interstate Commerce Commission or the
Department of Transportation and no consent, authorization or order of,
or filing or registration with, the Interstate Commerce Commission or
the Department of Transportation, except the Notice of Exemption filed
April 3, 1995 with the Interstate Commence Commission (Finance Docket
No. 32687) is required for the issuance, sale and delivery of the
Securities to the Underwriters or the consummation by the Company of the
transactions contemplated by the Terms Agreement (including the
provisions of this Underwriting Agreement Basic Provisions).
Such counsel may note in its opinion that the exemption pursuant
to the Notice is subject to petitions for reconsideration, reopening or
revocation to, or a stay of effectiveness by, the Interstate Commerce
Commission and review by the United States Courts of Appeal, but, to the
knowledge of such counsel, no petition for reconsideration, reopening or
revocation or petition for review has been filed, and no stay of
effectiveness has been issued, as of the Delivery Date. Such counsel
may state that it believes that the Company would be able to
successfully defend the exemption pursuant to the Notice if any such
petition is filed.
(h) The Company shall have furnished to the Representatives on
the Delivery Date a certificate addressed to the Underwriters and dated the
Delivery Date, signed on behalf of the Company by the Company's Chief
Executive Officer and by the Vice President and Chief Financial Officer
stating that:
(i) The representations, warranties and agreements of the
Company in the Terms Agreement (including this Underwriting Agreement
Basic Provisions) are true and correct as of the Delivery Date; the
Company has complied with all its agreements contained in the Terms
Agreement (including this Underwriting Agreement Basic Provisions); and
the conditions on its part to be fulfilled prior to the Delivery Date
set forth in the Terms Agreement (including this Underwriting Agreement
Basic Provisions) have been fulfilled;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and
(iii) They have carefully examined the Registration Statement and
the Prospectus and, in their judgment, (A) as of the date of the Terms
Agreement, neither the Registration Statement nor the Prospectus
included any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) since such date, no event has
occurred which should have been set forth in the Prospectus or a
supplement thereto or amendment thereof which has not been set forth in
such a supplement or amendment.
(i) With respect to the letter of Arthur Andersen & Co. delivered
to the Representatives concurrently with the execution of the Terms Agreement,
(the "initial letter"), the Company shall have furnished to the
Representatives a letter (as used in this paragraph, the "bring-down letter")
of such accountants, addressed to the Underwriters and dated the Delivery Date
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus,
as of a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letter and
confirming in all material respects the conclusions and findings set forth in
the initial letter.
All opinions, letters, certificates and documents mentioned above
or elsewhere in this Underwriting Agreement Basic Provisions shall be deemed
to be in compliance with the provisions hereof if they are exactly in the form
set forth above and, if not, or if no particular form is set forth above, only
if they are in form and substance reasonably satisfactory to Simpson Thacher &
Bartlett, counsel to the Underwriters.
7. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, and any action
in respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to
which that Underwriter or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, or the Registration Statement or
Prospectus as amended or supplemented, or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
each Underwriter and each such controlling person promptly upon demand for any
legal and other expenses reasonably incurred by that Underwriter or controlling
person in investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action; provided however that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto, made in reliance upon and in
conformity with information furnished in writing to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein; and provided further that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any Underwriter or any
person controlling an Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
Prospectus (or the Prospectus as amended or supplemented) to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability, unless such failure resulted
from non-compliance by the Company with Section 4(b) hereof. For purposes of
the last proviso to the immediately preceding sentence, the term "Prospectus"
shall not be deemed to include the documents incorporated therein by
reference, and no Underwriter shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in any
Preliminary Prospectus or the Prospectus to any person other than a person to
whom such Underwriter had delivered such incorporated document or documents in
response to a written request therefor. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to any
Underwriter or any controlling person of that Underwriter.
(b) Each Underwriter severally, and not jointly, shall indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, and any action in respect
thereof, to which the Company, or any such director or officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement, the Prospectus or
the Registration Statement or Prospectus as amended or supplemented, or arises
out of, or is 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 not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company, or any
such director or officer or controlling person promptly upon demand for any
legal and other expenses reasonably incurred by the Company, or any such
director or officer or controlling person in investigating or defending or
preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company, or any such director, officer
or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
its obligations hereunder, except to the extent that the indemnifying party is
materially prejudiced by such failure to notify, or from any liability which
it may have to an indemnified party otherwise than under this Section 7. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable investigation, provided, however, that
the Representatives shall have the right to employ counsel to represent the
Underwriters and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company under this Section 7 if, in the
reasonable judgment of the Underwriters, it is advisable for the Underwriters
and such controlling persons to be represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
indemnifying party. Except as provided above, it is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiffs,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel with respect to any proceeding, the
indemnifying party agrees that it shall be liable for any settlement of any
such proceeding effected without its consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement.
(d) If the indemnification provided for in this Section 7 shall
be for any reason unavailable or insufficient to hold the indemnified party
harmless, then each indemnifying party, with respect to its obligations as
provided in Section 7(a) or 7(b), shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other hand with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other hand with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Securities (before deducting expenses) received
by the Company bear to the total underwriting discounts, commissions and fees
received by the Underwriters with respect to such offering, in each case as
set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 7(d) shall be deemed to include, for purposes of this Section 7(d) and
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
underwriting obligations (or proceeds) and not joint.
8. Defaulting Underwriter. If, on the Delivery Date (as
hereinafter defined) any Underwriter defaults in the performance of its
obligations to purchase Securities under the Terms Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities
which the defaulting Underwriter agreed but failed to purchase on such date in
the respective proportions which the principal amount of Securities set forth
in the Terms Agreement for each remaining non-defaulting Underwriter bears to
the total principal amount of Securities set forth in the Terms Agreement for
each remaining non-defaulting Underwriters; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any
of the Securities on such date if the total principal amount of the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
on such date exceeds 9.09% of the total principal amount of Securities to be
purchased on such date, and any remaining non-defaulting Underwriter shall not
be obligated to purchase more than 110% of the principal amount of Securities
which it agreed to purchase on such date pursuant to the Terms Agreement. If
the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the remaining
non-defaulting Underwriters who so agree, shall have the right, but shall not
be obligated, to purchase (in such proportions as may be agreed upon among
them) the entire principal amount of the Securities to be purchased by the
Underwriters on such date. If the foregoing maximums are exceeded and the
remaining Underwriters or other underwriters satisfactory to the Underwriters
do not elect to purchase the amounts which the defaulting Underwriter or
Underwriters agreed but failed to purchase, the Terms Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
the Company, except that the Company will continue to be liable for the
payment of expenses to any non-defaulting Underwriter as set forth in Section
5. As used herein, the term "Underwriter" includes any person substituted for
a Underwriter under this Section 8.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by such
Underwriter's default. If other underwriters are obligated or agree to
purchase the Securities of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company may postpone the related delivery date for up to
seven full business days in order to effect any changes that, in the opinion
of counsel for the Company or counsel for the Underwriters, may be necessary
in the Registration Statement, the Prospectus or in any other document or
arrangement.
9. Termination. The obligations of the Underwriters under the
Terms Agreement (including this Underwriting Agreement Basic Provisions) may
be terminated by the Representatives, in their absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Securities, if prior to that time (a) a downgrading shall have occurred in the
rating accorded the Company's debt securities outstanding on the date of the
Terms Agreement by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations, (b) any such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities
outstanding on the date of the Terms Agreement, (c) trading in securities
generally on the New York Stock Exchange, The American Stock Exchange, the
Chicago Board Options Exchange or the over-the-counter market shall have been
suspended or materially limited or minimum prices shall have been established
on one or more of such exchanges or such market by the Commission or such
exchange or other regulatory body or governmental authority having
jurisdiction, (d) a banking moratorium shall have been declared by United
States federal or New York State authorities, (e) the United States shall have
become engaged in hostilities or there shall have been an escalation in
hostilities involving the United States or a declaration of a national
emergency or war shall have been made by the United States, (f) there shall
have been such a material adverse change in national or international
political, financial or economic conditions, national or international equity
markets or currency exchange rates or controls as to make it, in the judgment
of a majority in interest of the Underwriters, inadvisable or impracticable to
proceed with the payment for and delivery of the Securities, or (g)(i) the
Company or any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference in
the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or (ii) since
such date there shall have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Representatives,
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus.
10. Expenses upon Termination. If the sale of the Securities
provided for in any Terms Agreement is not consummated because of any failure,
refusal or inability on the part of the Company to perform any agreement on
its part to be performed, if notice shall have been given pursuant to Section
12 preventing the Terms Agreement from becoming effective, or if the
Underwriters shall decline to purchase the Securities for any reason permitted
under the Terms Agreement (including the termination of the Terms Agreement
pursuant to Section 9 hereof), the Company shall reimburse the Underwriters
for the fees and expenses of their counsel and for such other out-of-pocket
expenses as shall have been incurred by them in connection with the Terms
Agreement (including this Underwriting Agreement Basic Provisions) and the
proposed purchase of the Securities and upon demand the Company shall pay the
full amount thereof to the Underwriters. If the Terms Agreement is terminated
pursuant to Section 8 by reason of the default of an Underwriter or the
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including this Underwriting
Agreement Basic Provisions) will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities.
12. Notices. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made by all of the
Underwriters or their authorized representative. Any notice to the
Underwriters shall be sufficient if given in writing or telegraphed and
confirmed to the Representatives, at the addresses specified in the Terms
Agreement; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to the Company by the
Representatives upon request; any notice to the Company shall be sufficient
if, given in writing or telegraphed and confirmed addressed to the Company at
Illinois Central Railroad Company, 455 North Cityfront Plaza Drive, Chicago,
Illinois 60611, Attention: President.
13. Persons Entitled to Benefit of Agreement. This Underwriting
Agreement Basic Provisions and each Terms Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Company and their respective
successors. The terms and provisions of this Underwriting Agreement Basic
Provisions and each Terms Agreement are for the sole benefit of only those
persons, except that (a) the representations, warranties, indemnities and
agreements of the Company contained in this Underwriting Agreement Basic
Provisions and each Terms Agreement shall also be deemed to be for the benefit
of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act, and (b) the indemnity agreement
of the Underwriters contained in Section 7 of this Underwriting Agreement Basic
Provisions shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement, and any
person controlling the Company. Nothing in this Underwriting Agreement Basic
Provisions or any Terms Agreement is intended or shall be construed to give
any person other than the persons mentioned in the preceding two sentences any
legal or equitable rights, remedy or claim under or in respect of this
Underwriting Agreement Basic Provisions or any Terms Agreement.
14. Certain Definitions. For purposes of this Underwriting
Agreement Basic Provisions, (a) "business day" means any day on which the New
York Stock Exchange is open for trading and (b) "subsidiary" has the meaning
set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Underwriting Agreement Basic Provisions
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the choice of law or conflicts of laws
principles thereof.
16. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of or to affect the meaning
or interpretation of this Underwriting Agreement Basic Provisions.
Dated , 1995
ANNEX I
Terms Agreement
[REPRESENTATIVES OF THE UNDERWRITERS]
As Representatives of the several
Underwriters named in Schedule I
[Address of Lead Underwriter]
[Date]
Dear Sirs:
Illinois Central Railroad Company (the "Company") proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement Basic Provisions dated as of _________, 1995 (a copy of which is
attached hereto as Annex A) (the "Underwriting Agreement"), to issue the
Registered Securities specified in Schedule II hereto (the "Securities") and
to sell the Securities to the Underwriters named in Schedule I hereto (the
"Underwriters"). The Registered Securities will be issued pursuant to the
Indenture. Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Agreement, except that each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Prospectus (as therein
defined) and also a representation and warranty as of the date of this
Agreement in relation to the Prospectus as amended or supplemented relating to
the Securities. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of Securities and the address referred to
in Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Securities, in the form
heretofore delivered to you, is now proposed to be filed with the Commission.
On the basis of the representations, warranties, covenants and
agreements of the Company contained herein and in the Underwriting Agreement,
but subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters on the one hand and the Company on the other.
ILLINOIS CENTRAL RAILROAD COMPANY
By: _________________________
Name:
Title:
Accepted as of the date hereof
at New York, New York
By: _________________________
As Representative(s) on behalf of
each of the Underwriters
SCHEDULE I
Principal Amount of
Underwriter Securities to be Purchased
- --------------------------------------- ----------------------------
[Names of Representative(s)]...........
[Names of other Underwriters]..........
----------------------------
Total...................
============================
SCHEDULE II
<TABLE>
<S> <C>
Title of Securities: [___%] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due ____
Aggregate principal amount: $________________
Initial Offering Price to Public: ___% of the principal amount of the Securities, plus accrued interest from ________ to
the Delivery Date [and accrued amortization, if any, from _____________ to the
Delivery Date]
Purchase Price by Underwriters: ___% of the principal amount of the Securities, plus accrued interest from ________ to
the Delivery Date [and accrued amortization, if any, from _____________ to the
Delivery Date], in New York Clearing House next-day funds
Maturity: _______________________
Interest Rate: [___%] [Zero Coupon]
Interest Payment Dates: [months and dates]
Date from which interest shall accrue: _______________________
Regular Record Dates: [months and dates]
Redemption Provisions: [No provisions for redemption prior to maturity]
[The Securities may be redeemed, [otherwise than through the sinking fund,] in whole or
in part at the option of the Company, in the amount of $__________ or an integral
multiple thereof,
[on or after _________________ at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before
___________%, and if] redeemed during the 12-month period beginning
________________
Redemption Redemption
Year Price Year Price
--------------------------------------------------------------------------------------
% %
--------------------------------------------------------------------------------------
% %
--------------------------------------------------------------------------------------
% %
--------------------------------------------------------------------------------------
% %
--------------------------------------------------------------------------------------
% %
--------------------------------------------------------------------------------------
and thereafter at 100% of their principal amount, together in each case with accrued
interest to the redemption date].
[on any interest payment date falling on or after ________ at the election of the
Company, at a redemption price equal to the principal amount thereof, plus accrued
interest to the date of redemption.]
[Other possible redemption provisions, such as optional or mandatory redemption upon
occurrence of certain events]
[Restrictions on refunding]
Sinking Fund Provisions: [No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to retire $___________
principal amount of Securities on ____________ in each of the years _________
through ________ at 100% of their principal amount plus accrued interest] [, together
with [cumulative] [non-cumulative] redemptions at the option of the Company to retire
an additional $________ principal amount of Securities in the years ______ through
_____ at 100% of their principal amount plus accrued interest]
Form of Securities: [book-entry] [certificated]
Delivery Date: _________, 19__
Date of Board or Committee
Resolutions Establishing the Terms
and Provisions of the Securities:
Closing Location:
Limitations on Blue Sky [None] [Specify]
Qualifications:
Limitations on Jurisdiction in which [None] [Specify]
the Securities may be sold pursuant to
Section (5) of the Underwriting
Agreement:
Listing requirement: [None] [NYSE]
Partial reimbursement of [None]
Underwriters' expenses: [$____]
Name and Address of [insert]
Representative(s):
[Other Terms]<F1>:
<FN>
<F1>
A description of particular tax, accounting or other unusual features
of the Securities should be set forth, or referenced to an attached
and accompanying description, if necessary to the issuer's
understanding of the transaction contemplated. Such a description
might appropriately be in the form in which such features will be
described in the Prospectus Supplement for the offering.
</FN>
</TABLE>
EXHIBIT 4.1
ILLINOIS CENTRAL RAILROAD COMPANY
as the Company
and
The First National Bank of Boston
as Trustee
___________________________________
Indenture
Dated as of April 1, 1995
___________________________________
TABLE OF CONTENTS(*)
Page
----
RECITALS OF THE COMPANY
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions............................... 1
SECTION 1.2 Other Definitions......................... 7
SECTION 1.3 Incorporation by Reference of and Control
by Trust Indenture Act..................... 8
SECTION 1.4 Rules of Construction...................... 9
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating............................ 10
SECTION 2.2 Execution and Authentication............... 11
SECTION 2.3 Amount Unlimited; Issuable in Series....... 13
SECTION 2.4 Denominations and Interest Payments........ 16
SECTION 2.5 Registrar and Paying Agent................. 17
SECTION 2.6 Paying Agent to Hold Money in Trust........ 18
SECTION 2.7 Transfer and Exchange...................... 18
SECTION 2.8 Replacement Securities..................... 22
SECTION 2.9 Outstanding Securities..................... 22
SECTION 2.10 Temporary Securities....................... 23
SECTION 2.11 Cancellation............................... 24
SECTION 2.12 CUSIP Numbers.............................. 24
SECTION 2.13 Defaulted Interest......................... 24
SECTION 2.14 Persons Deemed Owners...................... 25
SECTION 2.15 Designation................................ 25
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article................... 25
- -------------
(*)Note: The Table of Contents shall not for any purposes be deemed
to be a part of the Indenture.
SECTION 3.2 Notice of Redemption; Partial Redemptions.. 25
SECTION 3.3 Payment of Securities Called for
Redemption................................. 28
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption... 29
SECTION 3.5 Mandatory and Optional Sinking Funds....... 29
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities...................... 32
SECTION 4.2 Maintenance of Office or Agency............ 33
SECTION 4.3 Corporate Existence........................ 34
SECTION 4.4 Payment of Taxes and Other Claims.......... 35
SECTION 4.5 Limitation on Liens........................ 35
SECTION 4.6 Certificate to Trustee..................... 37
SECTION 4.7 Reports by the Company..................... 38
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc................ 39
SECTION 5.2 Successor Substituted...................... 39
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default.......................... 40
SECTION 6.2 Acceleration............................... 42
SECTION 6.3 Other Remedies............................. 43
SECTION 6.4 Waiver of Past Defaults.................... 44
SECTION 6.5 Control by Majority........................ 44
SECTION 6.6 Limitation on Suits........................ 44
SECTION 6.7 Rights of Holders to Receive Payment....... 45
SECTION 6.8 Collection Suit by Trustee................. 45
SECTION 6.9 Trustee May File Proofs of Claim........... 46
SECTION 6.10 Application of Proceeds.................... 46
SECTION 6.11 Restoration of Rights and Remedies......... 48
SECTION 6.12 Undertaking for Costs...................... 48
SECTION 6.13 Rights and Remedies Cumulative............. 48
SECTION 6.14 Delay or Omission Not Waiver............... 48
ARTICLE 7
TRUSTEE
SECTION 7.1 General.................................... 49
SECTION 7.2 Certain Rights of Trustee.................. 49
SECTION 7.3 Individual Rights of Trustee............... 51
SECTION 7.4 Trustee's Disclaimer....................... 51
SECTION 7.5 Notice of Default.......................... 51
SECTION 7.6 Reports by Trustee to Holders.............. 52
SECTION 7.7 Compensation and Indemnity................. 52
SECTION 7.8 Replacement of Trustee..................... 53
SECTION 7.9 Successor Trustee by Merger, Etc........... 54
SECTION 7.10 Eligibility................................ 54
SECTION 7.11 Money Held in Trust........................ 54
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment...... 55
SECTION 8.2 Defeasance................................. 56
SECTION 8.3 Covenant Defeasance........................ 57
SECTION 8.4 Application of Trust Money................. 58
SECTION 8.5 Repayment to Company....................... 59
SECTION 8.6 Reinstatement.............................. 59
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders................. 60
SECTION 9.2 With Consent of Holders.................... 60
SECTION 9.3 Revocation and Effect of Consent........... 62
SECTION 9.4 Notation on or Exchange of Securities...... 63
SECTION 9.5 Trustee to Sign Amendments, Etc............ 63
SECTION 9.6 Conformity with Trust Indenture Act........ 64
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices................................... 64
SECTION 10.2 Certificate and Opinion as to Conditions
Precedent................................. 65
SECTION 10.3 Statements Required in Certificate or
Opinion................................... 66
SECTION 10.4 Evidence of Ownership..................... 66
SECTION 10.5 Rules by Trustee, Paying Agent or
Registrar................................. 67
SECTION 10.6 Payment Date Other Than a Business Day.... 67
SECTION 10.7 Governing Law............................. 68
SECTION 10.8 No Adverse Interpretation of Other
Agreements................................ 68
SECTION 10.9 Successors................................ 68
SECTION 10.10 Duplicate Originals....................... 68
SECTION 10.11 Separability.............................. 68
SECTION 10.12 Table of Contents, Headings, Etc.......... 68
SECTION 10.13 Incorporators, Stockholders, Officers and
Directors of Company Exempt from
Individual Liability...................... 68
SECTION 10.14 Judgment Currency......................... 69
SIGNATURES
INDENTURE, dated as of April 1, 1995, between Illinois Central
Railroad Company, a Delaware corporation, as the Company, and The First
National Bank of Boston, a national banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to
time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of any and all series thereof
and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting stock, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of
The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition)) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York or London, as applicable. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the secretary or an assistant secretary to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means, with respect to any Security, any day,
other than a Saturday or Sunday, that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or regulation to
close in the place of payment of such Security.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"Commission" means the U.S. Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Consolidated Net Tangible Assets" with respect to any Person
means, as at any date of determination, the total amount of assets (less
applicable reserves and other properly deductible items) of such Person and its
Subsidiaries determined on a consolidated basis in conformity with GAAP and
set forth on the most recent consolidated balance sheet of such Person and its
Subsidiaries preceding such date of determination after deducting therefrom
(i) all current liabilities (excluding any thereof which are by their terms
extendible or renewable at the option of the obligor thereon to a time more
than 12 months after such date of determination), (ii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other
like intangibles, and (iii) appropriate adjustments on account of minority
interests of other persons holding stock in the Subsidiaries of such Person,
all as determined on a consolidated basis in conformity with GAAP and set
forth on such most recent consolidated balance sheet of such Person and its
Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date of this
Indenture, located at Blue Hills Office Park, 150 Royall Street, Canton, MA
02021, Attention: Corporate Trust Division, Mail Stop 45-02-15 (Illinois
Central Railroad Company 1995 Indenture).
"Debt" means notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed.
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, The Depository Trust Company or any other Person designated as
Depositary pursuant to Section 2.3 with respect to such securities, until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or
include each Person who is then a Depositary hereunder and, if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"GAAP" means generally accepted accounting principles in the
United States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established pursuant to Sections 2.1 and 2.3.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement or other security interest
or encumbrance of any kind (including any agreement to grant any security
interest).
"Material Subsidiary" means each existing Subsidiary of the
Company and each subsidiary hereafter acquired or formed by the Company which,
in each case, for the most recent fiscal year of the Company, was the owner of
5% or more of the consolidated assets of the Company and its Subsidiaries
taken as a whole, as set forth on the consolidated financial statements of the
Company for such fiscal year.
"Officer" means, with respect to the Company, the chairman of
the board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the chairman of the board of directors, the president or
chief executive officer or a vice president and (ii) by the chief financial
officer, the treasurer or any assistant treasurer, or the secretary or any
assistant secretary, complying with Section 10.3 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.3.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.4. Each such opinion shall comply
with Section 314 of the Trust Indenture Act and include the statements
provided in Section 10.3, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b)
the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.2.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's preferred or
preference stock, whether now outstanding or issued after the date of the
Indenture, including, without limitation, all series and classes of such
preferred or preference stock.
"principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
"Principal Property" of any Person means, at any date of
determination, (a) any line or segment of track, together with signaling or
communication systems appurtenant thereto, owned by such Person as of such
date of determination over which at least 10 million gross tons of revenue
freight moved in the calendar year next preceding such date of determination;
(b) all locomotives and freight cars owned by such Person as of such date of
determination; (c) all freight yards and repair facilities owned by such
Person as of such date of determination; and (d) all real estate related to
the property described in (a), (b) or (c) owned by such Person as of such date
of determination.
"Redeemable Stock" means any equity security that by its terms
or otherwise is required to be redeemed prior to the maturity of the
Securities, or is redeemable at the option of the holder thereof at any time
prior to maturity of the Securities.
"Registered Global Security" means a Security evidencing all or
a part of a series of Registered Securities, issued to the Depositary for such
Securities in accordance with Section 2.2, and bearing the legend prescribed
in Section 2.2.
"Registered Security" means any Security registered on the
Security Register.
"Responsible Officer" means any officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall
include any coupon appertaining thereto.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of
the outstanding Voting Stock is owned, directly or indirectly, by such Person.
"Trust Indenture Act" means the U.S. Trust Indenture Act of
1939, as amended, as in effect on the date hereof, except as provided in
Sections 9.1 and 9.6.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act
of 1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which
obligations (in the case of clause (i) or clause (ii)) are not callable or
redeemable at the option of the issuer thereof, and shall also include (iii) a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on
or principal of any such U.S. Government Obligation held by such custodian for
the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"Voting Stock" means, with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person (irrespective of whether or not at the time stock of any other class or
classes shall have or might have voting power by reason of the happening of
any contingency).
"Yield to Maturity" means with respect to any Security, the
yield to maturity on such Security calculated at the time of issuance thereof
or, if applicable, at the most recent redetermination of interest on such
Security, and calculated in accordance with the constant interest method or
such other method as is specified in the terms of such Security established
pursuant to Section 2.3.
SECTION 1.2 Other Definitions. Each of the following
terms is defined in the Section set forth opposite such term:
Term Section
Authenticating Agent 2.2
Bankruptcy Law 6.1
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.14
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
record date 2.4
Registrar 2.5
Required Currency 10.14
Security Register 2.5
sinking fund payment date 3.5
UCC 8.2
SECTION 1.3 Incorporation by Reference of and Control by
Trust Indenture Act. Whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference in and made a
part of this Indenture. If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by operation of Section 318(c) of the
Trust Indenture Act, such imposed duties shall control. The following terms
used in this Indenture that are defined by the Trust Indenture Act have the
following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust Indenture
Act, defined by reference in the Trust Indenture Act to another statute or
defined by a rule of the Commission and not otherwise defined herein have the
meanings assigned to them therein. For purposes of Trust Indenture Act
Section 311(b)(4) and (6), the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 1.4 Rules of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, words in the
plural include the singular and "or" is not exclusive;
(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iv) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated;
(v) use of masculine, feminine or neuter pronouns should not
be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns; and
(vi) provisions apply to successive actions, events and
transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form and Dating. The Securities of each
series and the certificate of authentication to appear thereon, if any, shall
be substantially in such form or forms (not inconsistent with this Indenture)
as shall be established by or pursuant to Board Resolution or one or more
indentures supplemental hereto, in each case with such letters, numbers or
other marks of identification, insertions, omissions, substitutions, legends,
endorsements and other variations as are authorized or permitted by the
provisions of this Indenture, or may be required to comply with any law, rule
or regulation or any rule of any securities exchange or to conform to usage,
all as may consistently herewith be determined by the officers executing such
Securities as evidenced by their execution of the Securities. Unless
otherwise so determined, Unregistered Securities shall have coupons attached.
Unless otherwise established pursuant to Section 2.3 for the Securities of any
series, each Registered Security shall be dated the date of its authentication
and each Unregistered Security shall be dated the date of the of the original
issue of such Security or any predecessor Security. The definitive Securities
shall be printed, lithographed, engraved, or produced by any combination of
these methods or in any other manner on steel engraved borders or otherwise,
all as determined by the officers executing such Securities, as evidenced by
their execution thereof. Unless otherwise established pursuant to this
Section 2.3 for the Securities of any series, the certificate of
authentication to appear on all Securities shall be substantially as follows:
CERTIFICATE OF AUTHENTICATION
This Security is one of the Securities issued pursuant to the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By________________________________
Authorized Signer
SECTION 2.2 Execution and Authentication. Two Officers
shall execute the Securities (other than coupons) for the Company by facsimile
or manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.
The Trustee may appoint an authenticating agent acceptable to
the Company (an "Authenticating Agent") to authenticate Securities (other than
any coupons). The Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by any Authenticating Agent.
Unless otherwise established pursuant to Section 2.3 for the
Securities of any series, no Security (other than any coupons) shall be valid
until the Trustee or an Authenticating Agent manually signs the certificate of
authentication on the Security. Such signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
(having attached thereto appropriate coupons, if any) executed by the Company
to the Trustee for authentication together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the written order of the
Company. In authenticating the Securities of any series, the Trustee shall be
entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of such series were established;
(2) an Officers' Certificate setting forth the form or forms
and terms of the Securities and stating that the form or forms and
terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture;
(3) an Opinion of Counsel substantially to the effect that the
form or forms and terms of the Securities of such series have been,
or will be when established in accordance with such procedures as
shall be referred to therein, established in compliance with this
Indenture and that such Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and duly paid for by the purchasers
thereof, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to creditors' rights generally, general principles of equity
(whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing, and such other
matters as shall be specified therein; and
(4) In the event that the forms or terms of such Securities
have been established in or pursuant to a supplemental indenture, an
Opinion of Counsel substantially to the effect that the execution and
delivery of such supplemental indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, moratorium and other similar laws
relating to creditors' rights generally, general principles of equity
(whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing, and such other
matters as shall be specified therein.
Unless the terms established pursuant to Section 2.3 for the
Securities of a series or a portion thereof provide that any such Securities
are to be issued in any form other than as Registered Global Securities, the
Company shall execute and the Trustee shall authenticate and deliver one or
more Registered Global Securities that (i) shall state the aggregate principal
amount of all of the Securities of such series issued in such form and not yet
cancelled, (ii) shall be registered in the name of the Depositary therefor or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian or pursuant to such Depositary's instructions
and (iv) shall bear a legend substantially to the following effect: "UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY."
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant
to Board Resolution or one or more indentures supplemental hereto, prior to
the initial issuance of Securities of any series, subject to the last sentence
of this Section 2.3,
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture and any limitation on the ability of the Company
to increase such aggregate principal amount after the initial
issuance of the Securities of that series (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities
of such series and tenor pursuant to Section 2.7, 2.8, 2.10, 3.2 or
9.4);
(3) any date or dates on which the principal of the Securities
of the series is payable (which date or dates may be fixed or
extendible);
(4) any rate or rates (which may be fixed or variable) per
annum at which the Securities of the series shall bear interest, if
any, any date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or any method by which any
such rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, any place or
places where the principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for exchange, any notices or demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served and any notice to Holders may be published, and any
time when such payments are to be made at any place of payment;
(6) any right of the Company to redeem Securities of the
series, in whole or in part, at its option and any period or periods
within which, any price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(7) any obligation of the Company to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder
thereof and any price or prices at which, any period or periods within
which, and any terms and conditions upon which, Securities of the
series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(8) if other than the denominations specified in Section 2.4,
the denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment
of the principal of or interest on the Securities of the series shall
be payable or, if the amount of any payments of principal of and/or
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in
which such amounts shall be determined;
(11) if other than the currency of the United States of America,
the currency or currencies, including composite currencies, in which
payment of the principal of (and premium, if any) and interest on the
Securities of the series shall be payable, and the manner in which
any such currencies shall be valued against other currencies in which
any other Securities shall be payable;
(12) if other than as Registered Global Securities, whether the
Securities of the series or any portion thereof will be issuable as
Registered Securities or Unregistered Securities (with or without
coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities
or the payment of interest thereon and, if other than as provided
herein, any terms upon which Unregistered Securities of any series
may be issued in exchange for Registered Securities of such series
and tenor provided, however, that Unregistered Securities shall not
be issued in exchange for Registered Securities, including Registered
Securities that were issued in exchange for Unregistered Securities;
(13) any obligation of the Company to pay additional amounts on
the Securities of the series in respect of any tax, assessment or
governmental charge withheld or deducted and any right of the Company
to redeem such Securities rather than pay such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) if other than the Person acting as Trustee, any Agent
authenticating the Securities of the series;
(16) any provisions for the defeasance of any Securities of the
series in addition to, in substitution for or in modification of the
provisions of Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of any
Depositary for such Registered Global Security or Securities other
than The Depository Trust Company and any circumstances other than
those set forth in Section 2.7 in which any Person may have the right
to obtain Registered Securities in exchange therefor;
(18) any provisions for Events of Default applicable to any
Securities of the series in addition to, in substitution for or in
modification of the provisions of Section 6.1;
(19) any provisions for covenants applicable to any Securities
of the series in addition to, in substitution for or in modification
of the provisions of Article 4; and
(20) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto, shall be substantially identical, except as to principal
amount and, in the case of Registered Securities, as to date of authentication
and payee, and except as may otherwise be provided by or pursuant to the Board
Resolution or indenture supplemental hereto referred to above.
Notwithstanding the proceeding sentence, all Securities of any one series need
not be issued at the same time and may be issued from time to time, if so
provided by or pursuant to such Board Resolution or such indenture
supplemental hereto, and any forms and any terms of such Securities may be
determined from time to time prior to the issuance thereof by procedures
established by or pursuant to such Board Resolution or supplemental indenture.
SECTION 2.4 Denominations and Interest Payments. The
Securities shall be issuable as Registered Securities or Unregistered
Securities in denominations established pursuant to Section 2.3 or, if not so
established, in denominations of $1,000 and any integral multiple thereof for
Registered Securities and in denominations of $10,000 and $100,000 for
Unregistered Securities.
The Securities of each series shall bear interest, if any, from
the date, and such interest and shall be payable on the dates, established
pursuant to Section 2.3 for the Securities of such series.
The person in whose name any Registered Security is registered
at the close of business on any record date with respect to any interest
payment date for such Security shall be entitled to receive the interest, if
any, payable on such interest payment date notwithstanding any transfer or
exchange of such Registered Security subsequent to the record date and prior
to such interest payment date, except to any extent the Company shall default
in the payment of such interest, in which case the provisions of Section 2.13
shall apply. The term "record date" as used with respect to any interest
payment date (except a date for payment of defaulted interest) for any
Registered Security shall mean the date specified as such in the terms of such
Registered Security established pursuant to Section 2.3, or, if no such date
is so established, the fifteenth day next preceding such interest payment
date, whether or not such record date is a Business Day.
Whenever it is necessary to compute an amount of interest in
respect of any Security for a period of less than a full year, such interest
shall be calculated on the basis of a 360-day year consisting of twelve months
of 30 days each and, in the case of an incomplete month, the actual number of
days elapsed, except as otherwise established pursuant to Section 2.3 for any
Security.
SECTION 2.5 Registrar and Paying Agent. The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the "Registrar") and an office or
agency where Securities may be presented for payment (the "Paying Agent").
The Registrar shall keep a register of the Registered Securities of each
series and of their registration, transfer and exchange (the "Security
Register"). The Company may appoint one or more additional or substitute
Paying Agents or Registrars with respect to the Securities of any series, or
remove any Agent, without notice to any Person (other than the Trustee). The
terms "Paying Agent" and "Registrar" includes all Persons appointed as such.
Whenever no other Person is acting as Registrar or Paying Agent
with respect to the Securities of any series, the Person then acting as
Trustee shall also act as such Registrar or Paying Agent. The Company or any
Affiliate of the Company may act as Paying Agent or Registrar. If, at any
time, the Person acting as the Trustee is not the Registrar with respect to
the Registered Securities of any series, such Registrar shall make available
to the Trustee ten days prior to each interest payment date for such
Securities and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Security Register for
such Securities.
SECTION 2.6 Paying Agent to Hold Money in Trust. Not
later than 10:00 a.m. in the place of payment on each due date of any
principal or interest on any Securities, or at such other time as shall be
established pursuant to Section 2.3 for any Securities with respect to such
Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such principal or interest. The
Company shall require each Paying Agent with respect to the Registered
Securities of any series other than the Person acting as the Trustee to agree
in writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent
for the payment of principal of and interest on such Securities and shall
promptly notify the Trustee of any default by the Company in making any such
payment. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed, and the Trustee
may at any time during the continuance of any payment default, upon written
request to a Paying Agent, require such Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed. Upon doing so, the
Paying Agent (as such) shall have no further liability for the money so paid
over to the Trustee. If the Company or any Affiliate of the Company acts as
Paying Agent, it will segregate and hold in a separate trust fund for the
benefit of the Holders thereof a sum of money sufficient to pay such principal
or interest so becoming due until such sum of money shall be paid to such
Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee in writing of its failure to act as required by
this Section 2.6.
SECTION 2.7 Transfer and Exchange. Unregistered
Securities (except for any temporary global Unregistered Securities) and
coupons (except for coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Registered Securities of
such series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company maintained for such purpose and upon payment, if
the Company shall so require, of the sum hereinafter provided. If the
Securities of any series are issued in both registered and unregistered form,
except as otherwise established pursuant to Section 2.3 for the Securities of
such series, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company maintained for such purpose, with, in the case of Unregistered
Securities that were issued with coupons appertaining, all such unmatured
coupons and all such matured coupons in default, and upon payment, if the
Company shall so require, of the sum hereinafter provided. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Except as otherwise established pursuant
to Section 2.3 for the Securities of such series, no Unregistered Securities
may be issued in exchange for Registered Securities and no Registered
Securities, including Registered Securities received in exchange for
Unregistered Securities, may be issued in exchange for any Unregistered
Securities.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder or
his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge that may be imposed in
connection with any exchange or registration of transfer of Securities (other
than such transfer tax or similar charge imposed upon exchanges pursuant to
Section 2.10, 3.3 or 9.4). No service charge shall be made for any such
transaction.
Notwithstanding any other provision of this Section 2.7, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security of any series may not be
transferred except as a whole by the Depositary therefor to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable
to continue as Depositary for such Registered Global Securities or if at any
time the Depositary for such Registered Global Securities shall no longer be
eligible under applicable law, the Company shall appoint a successor
Depositary eligible under applicable law with respect to such Registered
Global Securities. If a successor Depositary eligible under applicable law
for such Registered Global Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of the
Company's order for the authentication and delivery of definitive Registered
Securities of such series, will authenticate and deliver, Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer
be maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series and tenor in definitive registered form
without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of such Registered Global Securities, in
exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the
form of Registered Global Securities pursuant to the preceding two paragraphs,
the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.2
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
During the continuance of an Event of Default and in such other
circumstances, if any, as may be established pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Company or the Trustee. The Trustee or such Agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any Agent
shall issue any Registered Security in exchange for an Unregistered Security
if such exchange would result in adverse Federal income tax consequences to
the Company under then applicable United States Federal income tax laws and
any Registered Security issued in exchange for an Unregistered Security will be
subject to the provisions of the United States Federal income tax laws and
regulations applicable to debt securities in effect at the time of such
exchange. The Trustee and any Agent shall be entitled to rely on an Officers'
Certificate or an Opinion of Counsel in determining such result and, in the
absence thereof, shall assume without inquiry that any such exchange would
cause such adverse tax consequences.
The Registrar shall not be required (i) to register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the transmission of a notice
of redemption of Securities of such series selected for redemption under
Section 3.2 and ending at the close of business on the day of such
transmission or (ii) to register the transfer of or exchange any Security
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 2.8 Replacement Securities. If a defaced or
mutilated Security of any series is surrendered to the Trustee or if a Holder
claims that its Security of any series has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of such series and tenor and principal amount, bearing a
number not contemporaneously outstanding. If required by the Trustee or the
Company, an indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company, the
Trustee and any Agent from any loss that any of them may suffer if a Security
is replaced. The Company may charge such Holder for its expenses and the
expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due
and payable, the Company in its discretion may pay such Security instead of
issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 2.9 Outstanding Securities. Securities
outstanding at any time are all Securities that have been authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to
be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide holder
in due course.
If the Paying Agent (other than the Company or an Affiliate of
the Company) holds, or if the Company or its Affiliate (if the Company or its
Affiliate shall act as the Paying Agent) sets aside and segregates in trust,
on the maturity date or any redemption date or date for repurchase of the
Securities, money sufficient to pay Securities payable or to be redeemed or
repurchased on that date, then on and after that date such Securities cease to
be outstanding and interest on them shall cease to accrue; provided, however,
that, if such Securities or portions thereof are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture, or provision
therefor satisfactory to such Trustee has been made.
A Security does not cease to be outstanding because the Company
or one of its Affiliates holds such Security, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company or any Affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee knows to be so owned shall be so disregarded. The principal amount of
an Original Issue Discount Security that shall be deemed to be outstanding for
such purposes shall be the amount of principal thereof that would be due and
payable as of the date of such determination upon a declaration of
acceleration pursuant to Section 6.2. Any Securities so owned which have been
pledged in good faith by the Company, or by any Affiliate of the Company, as
security for loans or other obligations, otherwise than to another such
Affiliate of the Company, shall be deemed to be outstanding if the pledgee
establishes to the satisfaction of the Trustee that the pledgee is entitled
pursuant to its pledge agreement and is free to exercise in its discretion the
right to vote such securities, uncontrolled by the Company or by any such
Affiliate.
SECTION 2.10 Temporary Securities. Until definitive
Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities of such series. Temporary
Securities of any series shall be substantially in the form of definitive
Securities of such series but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the Officers executing the
temporary Securities, as evidenced by their execution of such temporary
Securities. If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series and tenor upon surrender of such temporary
Securities at the office or agency of the Company designated for such
purpose, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series and tenor and
authorized denominations. Until so exchanged, the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
SECTION 2.11 Cancellation. The Company at any time may
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold. Any Agent shall forward to the Trustee any Securities surrendered
to it for transfer, exchange or payment. The Trustee shall cancel and destroy
all Securities surrendered for transfer, exchange, payment or cancellation and
shall deliver certificates of destruction to the Company, all in accordance
with its customary practices. The Company may not issue new Securities to
replace Securities it has paid in full or delivered to the Trustee for
cancellation.
SECTION 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption, repurchase or exchange as a convenience to Holders;
provided that any such notice shall state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any such notice.
SECTION 2.13 Defaulted Interest. If the Company
defaults in a payment of interest on any Securities of any series, it shall
pay, or shall deposit with the Paying Agent money in immediately available
funds sufficient to pay, the defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest (as may be specified in the
terms established pursuant to Section 2.3 for the Securities of such series)
to the Persons who are Holders on a subsequent special record date, which shall
mean the 15th day next preceding the date fixed by the Company for the payment
of defaulted interest, whether or not such day is a Business Day. At least 15
days before such special record date, the Company shall mail to each Holder
and to the Trustee a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.
SECTION 2.14 Persons Deemed Owners. Prior to due
presentment of a Security for registration of transfer and subject to Section
2.13, the Company, the Trustee and any Agent may deem and treat the Person in
whose name any Security shall be registered upon the register of Securities
kept by the Registrar as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of the
ownership or other writing thereon made by anyone other than the Company or any
Registrar) for the purpose of receiving payments or principal of or interest
on such Security and for all other purposes; and none of the Company, the
Trustee and any Agent shall be affected by any notice to the contrary.
None of the Company, the Trustee and any Agent shall have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Registered
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 2.15 Designation. The indebtedness evidenced by
the Securities is hereby irrevocably designated as "senior indebtedness" or
such other term denoting seniority for the purposes of any future indebtedness
of the Company that the Company makes subordinate to any senior indebtedness
or such other term denoting seniority.
ARTICLE 3
REDEMPTION
SECTION 3.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series, except as otherwise specified pursuant to Section 2.3
for Securities of such series.
SECTION 3.2 Notice of Redemption; Partial Redemptions.
Notice of redemption shall be given by the Company, or at the Company's
request, by the Trustee in the name and at the expense of the Company, to the
Holders of Registered Securities to be redeemed by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders at their
last addresses as they shall appear upon the Security Register. Notice of
redemption to the Holders of Unregistered Securities to be redeemed who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not
more than 60 days prior to the date fixed for redemption, to such Holders at
such addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Company, the Trustee shall make such information
available to the Company for such purpose). Notice of redemption to all other
Holders of Unregistered Securities to be redeemed as a whole or in part shall
be published in an Authorized Newspaper in The City of New York or, with
respect to any Security the interest on which is based on the offered
quotations in the interbank Eurodollar market for dollar deposits, in an
Authorized Newspaper in London, and in any other place of payment established
pursuant to Section 2.3 for such Unregistered Security, in each case, once in
each of three successive calendar weeks, the first publication to be not less
than 30 days nor more than 60 days prior to the date fixed for redemption.
Any notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP numbers of the Securities to be redeemed, the date fixed
for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and,
in the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, or such other terms of such Securities as shall be specified
in such notice, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that, unless the Company defaults in
making such redemption payment, on and after said date interest thereon or on
the portions thereof to be redeemed will cease to accrue. In case any Security
of a series is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series and tenor in principal
amount equal to the unredeemed portion thereof will be issued.
On or before 10:00 a.m. (or at such other time as shall be
established pursuant to Section 2.3) in the place of payment on the redemption
date specified in the notice of redemption given as provided in this Section,
or at such other time as shall be established pursuant to Section 2.3 for any
Securities with respect to such Securities, the Company will deposit with the
Trustee or with one or more Paying Agents (or, if the Company is acting as its
own Paying Agent, set aside, segregate and hold in trust as provided in
Section 2.6) an amount of money sufficient to redeem on the redemption date
all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to
the last date on which notice of redemption may be given to Holders pursuant
to the first paragraph of this Section 3.2 an Officers' Certificate stating
that all such Securities are to be redeemed. If less than all the outstanding
Securities of a series are to be redeemed, the Company will deliver to the
Trustee at least 15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.2
(or such shorter period as shall be acceptable to the Trustee) an Officers'
Certificate stating the aggregate principal amount of such Securities to be
redeemed. In case of a redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders
pursuant to this Section, an Officers' Certificate stating that such
redemption is not prohibited by such restriction.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 3.3 Payment of Securities Called for Redemption.
If notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after such date (unless the Company shall default in
the payment of such Securities at the redemption price, together with interest
accrued to such date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and the unmatured coupons, if
any, appertaining thereto shall be void and, except as provided in Sections
7.11 and 8.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.4 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security, or at any rate for defaulted interest
specified in the form or terms of such Security established pursuant to
Section 2.1 or 2.3.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing
after the date fixed for redemption, the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save each of
them harmless, or the redemption price may be reduced by an amount equal to
the face amount of all such missing coupons.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be excluded from
eligibility for selection for redemption if they are identified by
registration and certificate number in a written statement signed by an
authorized officer of the Company and delivered to the Trustee at least 40
days prior to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or hypothecated by,
either (a) the Company or (b) an entity specifically identified in such
written statement as an Affiliate of the Company.
SECTION 3.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of the Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.11, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Company through any optional sinking fund payment. Securities
so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
specified Securities of such series and the basis for such credit, (b) stating
that none of the specified Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Company
intends to exercise its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.11 to the Trustee with such Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officers' Certificate
shall be irrevocable and upon its receipt by the Trustee the Company shall
become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such sixtieth day, to
deliver such Officer's Certificate and Securities specified in this paragraph,
if any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company will
make no optional sinking fund payment with respect to such series as provided
in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 or a lesser sum if the Company shall so request with
respect to the Securities of any series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 or less and the Company makes no such request then it shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall select,
in the manner provided in Section 3.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Company) inform the Company of the serial numbers of the Securities of
such series (or portions thereof) so selected. Securities shall be excluded
from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to
the Trustee at least 60 days prior to the sinking fund payment date as being
owned of record and beneficially by either (a) the Company or (b) an entity
specifically identified in such Officers' Certificate as an Affiliate of the
Company. The Trustee, in the name and at the expense of the Company (or the
Company, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 3.2 (and with the effect provided in Section 3.3)
for the redemption of Securities of such series in part at the option of the
Company. The amount of any sinking fund payments not so applied or allocated
to the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities
of such series at maturity.
On or before 10:00 a.m. in the place of payment on each sinking
fund payment date, the Company shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date fixed
for redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund
during the continuance of a Default in payment of interest on such Securities
or of any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when
any such Default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article 6 and held
for the payment of all Securities of such Series. In case such Event of
Default shall have been waived as provided in Section 6.4 or the Default cured
on or before the sixtieth day preceding the sinking fund payment date in any
year, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of Securities. The Company shall pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities
with coupons attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. The interest on any temporary
Unregistered Securities (together with any additional amounts payable pursuant
to the terms of such Securities) shall be paid, as to the installments of
interest evidenced by coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if any,
only upon presentation of such Unregistered Securities for notation thereon of
the payment of such interest. The interest on Registered Securities (together
with any additional amounts payable pursuant to the terms of such Securities)
shall be payable only to the Holders thereof and at the option of the Company
may be paid by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the Security
Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of
Registered Securities so agree, payments of interest on, and any portion of
the principal of, such Holder's Registered Securities (other than interest
payable at maturity or on any redemption or repayment date or the final
payment of principal on a Security) shall be made by the Paying Agent directly
to the Holder of such Securities by Federal funds wire transfer or otherwise
if the Holder has delivered written instructions to the Paying Agent at least
15 days prior to such payment date requesting that such payment will be so
made and designating the bank account to which such payments shall be so made
and in the case of payments of principal has surrendered such Security to the
Trustee in exchange for a Security or Securities of the same series and tenor
aggregating the same principal amount as the unredeemed principal amount of
the Securities surrendered. The Trustee shall be entitled to rely on the last
instruction delivered by the Holder pursuant to this Section 4.1 unless a new
instruction is delivered 15 days prior to a payment date.
The Company shall pay interest on overdue principal, and
interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Securities.
SECTION 4.2 Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company hereby initially designates the office of BancBoston
Trust Company of New York, located in the Borough of Manhattan, The City of New
York, as such office or agency of the Company. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto
may be presented for payment. No payment on any Unregistered Security or
coupon will be made upon presentation of such Unregistered Security or coupon
at an agency of the Company within the United States nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States unless, pursuant to applicable United States laws and regulations then
in effect, such payment can be made without adverse tax consequences to the
Company. Notwithstanding the foregoing, if full payment in United States
Dollars ("Dollars") at each agency maintained by the Company outside the
United States for payment on such Unregistered Securities or coupons
appertaining thereto is illegal or effectively precluded by exchange controls
or other similar restrictions, payments in Dollars of Unregistered Securities
of any series and coupons appertaining thereto which are payable in Dollars
shall be made at an agency of the Company maintained in the Borough of
Manhattan, The City of New York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, The City of New York for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Unless otherwise established pursuant to Section 2.3 with
respect to the Securities of any series, the time of each payment by the
Company to the Trustee or any Agent under this Indenture shall be at 10:00
A.M. in the place of payment thereof.
SECTION 4.3 Corporate Existence. Subject to Article 5,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its material rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such material right or franchise if the
preservation thereof is no longer desirable in the conduct of the business of
the Company or the loss thereof is not materially adverse to the Holders of
the Securities.
SECTION 4.4 Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged, before any
penalty accrues thereon, all material taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment or charge whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 4.5 Limitation on Liens. (a) The Company will
not, nor will it permit any Subsidiary to, (i) create, issue, incur, assume or
guarantee any Debt, if such Debt is secured by a Lien upon, or (ii) directly or
indirectly secure any outstanding Debt of the Company or any Subsidiary by a
Lien upon, any Principal Property of the Company or any Subsidiary now owned
or hereafter acquired by the Company or such Subsidiary, without in any such
case effectively providing, concurrently with the creation, issuance,
incurrence, assumption or guarantee of any such Debt, or the granting of
security with respect to any such outstanding Debt, that all outstanding
Securities (together with, if the Company shall so determine, any other Debt of
or guaranteed by the Company or any Subsidiary ranking equally with the
Securities then existing or thereafter created) shall be secured equally and
ratably with (or prior to) such Debt; provided, however, that the foregoing
restriction shall not apply to:
(1) Liens on any Principal Property acquired after the date
hereof which are created or assumed contemporaneously with, or within
180 days after, such acquisition solely for the purpose of securing
Debt (including, but not limited to, deferred purchase price
obligations) representing, or incurred to finance, refinance or
refund, the purchase price or acquisition cost (including any debt
assumed in connection with such acquisition) of the Principal
Property subject thereto; provided that (a) the principal amount of
the Debt secured by any such Lien does not exceed 100% of the
purchase price or acquisition cost of the Principal Property subject
thereto and (b) no such Lien extends to or covers any Principal
Property other than such Principal Property and any improvements on
or rights appurtenant thereto acquired in such transaction;
(2) Liens on any Principal Property which are created for the
purpose of financing the construction of an improvement on such
Principal Property, provided that (a) the principal amount of the
Debt secured by any such Lien does not exceed 100% of the cost of the
improvement related to such Lien, (b) no such Lien extends to or
covers any Principal Property other than such Principal Property and
any improvements on or rights appurtenant thereto and (iii) the
aggregate amount of Debt secured by such Liens shall not exceed
$10,000,000 at any time;
(3) Liens on any Principal Property of any corporation
existing at the time such corporation becomes a Subsidiary after the
date hereof;
(4) Liens on any Principal Property in existence on the date
hereof;
(5) Liens to secure Debt of a Subsidiary to the Company or to
another Subsidiary;
(6) Liens in favor of the United States of America, any of
its territories or possessions, or any State thereof, or any
department, agency, instrumentality or political subdivision of any
thereof, or any department, agency or instrumentality of any such
political subdivision, to secure partial progress, advance or other
payments pursuant to any contract or statute;
(7) pledges or deposits incurred in connection with workers'
compensation, unemployment insurance and other social security and
similar legislation and deposits securing Debt to insurance carriers
under insurance or self-insurance arrangements;
(8) Liens incurred in connection with taxes not yet due or
which are being contested in good faith by appropriate proceedings,
provided that adequate reserves Company or its Subsidiaries, as the
case may be, in conformity with GAAP;
(9) any materialmen's, carriers', mechanics', workmen's
repairmen's or other like Liens arising in the ordinary course of
business in respect of obligations which are not yet overdue or which
are being contested in good faith by appropriate proceedings;
(10) Liens arising in connection with surety, appeal and
similar bonds incidental to the conduct of litigation;
(11) Liens arising in connection with bid, performance or
similar bonds which do not exceed in the aggregate $5,000,000;
(12) easements, rights of way, general real estate taxes not
yet due and payable, municipal and zoning restrictions, restrictions
on the use of real property and defects and irregularities in the
title thereto; and
(13) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), in
whole or in part, of any Lien referred to in the foregoing clauses (1)
through (12), inclusive, or the Debt secured thereby; provided,
however, that (a) such extension, renewal, substitution or
replacement shall be limited to all or part of the Principal Property
which secured the Lien so extended, renewed, substituted or replaced
(plus improvements on such Principal Property) prior to such
extension, renewal, substitution or replacement and (b) in the case
of clauses (2) and (3) above, the Debt secured by such Lien at such
time is not increased.
(b) Notwithstanding the provisions of subsection (a) of this
Section 4.5, the Company or any Subsidiary may (without equally and ratably
securing the Securities) create, issue, incur, assume or guarantee secured
Debt of the Company which, together with all other such secured Debt of the
Company and its Subsidiaries (that is, not including secured Debt of the
Company and its Subsidiaries permitted in accordance with Section 4.5(a))
outstanding at such time, does not at such time exceed 10% of Consolidated Net
Tangible Assets of the Company.
SECTION 4.6 Certificate to Trustee. Within 120 days
after the close of each fiscal year of the Company ending after the date
hereof, the Company will file with the Trustee a certificate signed by the
Chairman of the Board of Directors, the Chief Executive Officer, the President
or any Vice President and by the Chief Financial Officer, the Treasurer, the
Controller or any Assistant Treasurer or Assistant Controller or the Secretary
or any Assistant Secretary of the Company (provided, that one such signatories
shall be the Company's principal executive officer, principal financial
officer or principal accounting officer), as to such Officers' knowledge of
the Company's compliance with all conditions and covenants under this
Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and in the event any Default of the Company exists, such
Officers shall specify the nature of such Default.
SECTION 4.7 Reports by the Company. The Company
covenants to (a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act (or copies of such portions thereof as may be prescribed
by the Commission by rules and regulations); or, if the Company is not
required to file with the Commission information, documents or reports
pursuant to either Section 13 or Section 15(d) of the Exchange Act, then the
Company will file with the Trustee and will file with the Commission, in
accordance with rules and regulations prescribed by the Commission, such of
the supplementary and periodic information, documents and reports required
pursuant to Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed in such
rules and regulations; (b) file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in
this Indenture as may be required by such rules and regulations, including, in
the case of annual reports, if required by such rules and regulations,
certificates or opinions of independent public accountants, conforming to the
requirements of Sections 10.2 and 10.3, as to compliance with conditions or
covenants, compliance with which is subject to verification by accountants;
(c) mail, or cause the Trustee to mail, to the Holders of the Securities, as
the names and addresses of such Holders appear on the register for Securities,
such information, documents and reports required to be filed with the Trustee
pursuant to the provisions of paragraphs (a) and (b) of this Section 3.3 as
may be required by rules and regulations prescribed by the Commission; and (d)
remain subject to the informational filing requirements of the Commission
pursuant to the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, Etc. The Company
shall not consolidate or merge with any other Person or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all its
properties and assets as an entirety in one transaction or a series of
transactions to any Person, unless:
(1) either (a) the Company shall be the continuing Person or
(b) such Person shall be a corporation organized and validly existing
under the laws of the United States of America or any State thereof
or the District of Columbia and shall expressly assume by a
supplemental indenture all of the Company's obligations under the
Securities and under this Indenture;
(2) immediately before and after such transaction or each
element of such series, no Default or Event of Default or Event of
Default shall have occurred and be continuing; and
(3) giving effect to such transaction will not cause an event
of default under any mortgage, bond, debenture, note or other
instrument or obligation that the Company or any Subsidiary of the
Company is a party to or bound by.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.
SECTION 5.2 Successor Substituted. Upon any
consolidation or merger, or any sale, conveyance, assignment, transfer, lease
or other disposition of all or substantially all of the properties and assets
of the Company in accordance with Section 5.1, the successor Person formed by
such consolidation or into or with which the Company is merged or to which
such sale, conveyance, assignment, transfer, lease or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default. An "Event of Default"
shall occur with respect to the Securities of any series if there shall occur:
(a) Any failure to pay any installment of interest on any
Securities of such series, when and as the same shall become payable
as therein expressed, and such failure shall continue for a period of
30 days (it being understood that if the entire amount of such
payment of interest is irrevocably deposited by the Company with the
Trustee, or with another Paying Agent duly appointed hereunder,
before the expiration of such period of 30 days, such Default shall
no longer be considered to be continuing under this Indenture); or
(b) Any failure to pay the principal of any Securities of
such series when and as the same shall become due and payable as
therein expressed, whether at the stated maturity thereof or
otherwise; or
(c) Any failure to perform or observe any other of the
covenants, conditions or agreements on the part of the Company to be
performed or observed pursuant to this Indenture or in the Securities
of such series, (other than a covenant, condition or agreement a
Default in whose performance or whose breach is elsewhere in this
Section 6.1 specifically dealt with) and such failure shall continue
for a period of 60 days after written notice specifying the failure
and that the same is a Default and requiring the Company to remedy
such failure shall have been given to the Company from the Trustee or
to the Company and to the Trustee from the Holders of not less than
25% of the principal amount of the Securities of such series then
outstanding; or
(d) Any default or event of default, as defined in any one or
more mortgages, indentures or instruments under which there may be
issued, or by which there may be secured or evidenced, indebtedness
of the Company or any Subsidiary, whether such indebtedness now
exists or shall hereafter be created, and the holders of such
indebtedness shall have declared an aggregate amount in excess of
$20,000,000 thereof to be due and payable prior to the date on which
it would otherwise have become due and payable and such declaration
shall not have been cured, waived, rescinded or annulled in
accordance with the provisions of such mortgage, indenture or
instruments or such indebtedness shall not have been discharged
within a period of 30 days; or
(e) The Company or any Material Subsidiary shall file a
petition commencing a voluntary case under any provision of Title 11,
United States Code or any similar Federal or state law for the relief
of debtors (the "Bankruptcy Law"); or the Company or any Material
Subsidiary shall file a petition or answer or consent seeking
reorganization, arrangement, adjustment, or composition under any
Bankruptcy Law, or shall consent to the filing of any such petition,
answer, or consent; or the Company or any Material Subsidiary shall
appoint, or consent to the appointment of, a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar official
in bankruptcy or insolvency of the Company or any Material Subsidiary
or of any substantial part of its property or shall make an
assignment for the benefit of creditors; or
(f) Any order for relief against the Company or any Material
Subsidiary shall have been entered by a court having jurisdiction in
the premises under any provision of Bankruptcy Law and such order
shall have continued undischarged or unstayed for a period of 60
days; or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a
petition seeking reorganization, arrangement, adjustment, or
composition of the Company or any Material Subsidiary under any
Bankruptcy Law, and such decree or order shall have continued
undischarged or unstayed for a period of 60 days; or a decree or
order of court having jurisdiction in the premises for the
appointment of a custodian, receiver, similar official in bankruptcy
or insolvency of the Company or any Material Subsidiary or of any
substantial part of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and such decree
or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(g) Any other Event of Default established pursuant to Section
2.3 for the Securities of such series.
SECTION 6.2 Acceleration. (a) If an Event of Default
described in clauses (a), (b), (c), (d) or (g) of Section 6.1 with respect to
the Securities of any series then outstanding occurs and is continuing, then,
and in each and every such case, except for any Securities the principal of
which shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities
of any such affected series then outstanding hereunder (each such series
treated as a separate class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.3) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
(b) If an Event of Default described in clause (e) or (f) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of all the Securities then outstanding of such affected series,
except for any Securities the principal of which shall have already become due
and payable, and interest accrued thereon, if any, shall be and become
immediately due and payable, without any notice or other action by any Holder
or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be specified
in the terms thereof established pursuant to Section 2.3) of the Securities of
any series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided,
the Company shall have paid or shall have deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of each such series (or of all the Securities, as the case may be) and the
principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments
of interest, at the rate specified therefor in such Securities or, if not so
specified, at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
each such series to the date of such payment or deposit) and such amount as
shall be sufficient to cover all amounts owing the Trustee under Section 7.7,
and if any and all Events of Default under the Indenture, other than the
non-payment of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then and in every such case the Holders of a majority in aggregate
principal amount of all the then outstanding Securities of each such series
that have been accelerated (each such series voting as a separate class), by
written notice to the Company and to the Trustee, may waive all defaults with
respect to each such series (or with respect to all the Securities, as the
case may be) and rescind and annul such declaration and its consequences, but
no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 6.3 Other Remedies. If an Event of Default with
respect to the Securities of any series occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust, any available
remedy by proceeding at law or in equity to collect the payment of principal
of and interest on the Securities of such series or to enforce the performance
of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections
6.2, 6.7 and 9.2, the Holders of at least a majority in principal amount (or,
if the Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof established pursuant to
Section 2.3) of the outstanding Securities of each series affected (each such
series voting as a separate class), by notice to the Trustee, may waive an
existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of principal of
or interest on any Security as specified in clause (a) or (b) of Section 6.1 or
in respect of a covenant or provision of this Indenture which cannot be
modified or amended without the consent of the Holder of each outstanding
Security affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default with respect to the Securities of such series arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.
SECTION 6.5 Control by Majority. Subject to Sections 7.1
and 7.2(v), the Holders of at least a majority in aggregate principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in the terms thereof established pursuant to
Section 2.3) of the outstanding Securities of each series affected (each such
series voting as a separate class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided, that the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
may involve the Trustee in personal liability or that the Trustee determines
in good faith may be unduly prejudicial to the rights of Holders not joining
in the giving of such direction; and provided further, that the Trustee may
take any other action it deems proper that is not inconsistent with any
directions received from Holders of Securities pursuant to this Section 6.5.
SECTION 6.6 Limitation on Suits. No Holder of any
Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of such
series have not given the Trustee a direction that is inconsistent
with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent
of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of
Default with respect to the Securities of any series in payment of principal
or interest specified in clause (a) or (b) of Section 6.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount (or such portion
thereof as specified in the terms established pursuant to Section 2.3 of
Original Issue Discount Securities) of principal of, and accrued interest
remaining unpaid on, together with interest on overdue principal of, and, to
the extent that payment of such interest is lawful, interest on overdue
installments of interest on, the Securities of such series, in each case at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities or, if not so specified, at the same
rate as the rate of interest or Yield to Maturity (in such case) specified for
such Securities, and such further amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for amounts due the Trustee under Section 7.7) and the Holders
allowed in any judicial proceedings relative to the Company (or any other
obligor on the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys, securities or other
property payable or deliverable upon conversion or exchange of the Securities
or upon any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it under Section 7.7. Nothing herein contained
shall be deemed to empower the Trustee to authorize or consent to, or accept or
adopt on behalf of any Holder, any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date or dates
fixed by the Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the several Securities
or any coupons appertaining to such Securities in respect of which moneys have
been collected and stamping (or otherwise noting) thereon the payment, or
issuing Securities of such series and tenor in reduced principal amounts in
exchange for the presented Securities of such series and tenor if only
partially paid, or upon surrender thereof if fully paid, provided, that when
interest alone is to be paid on a Registered Security, the Trustee at its
election may waive presentation of the Securities:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest, at the rate specified therefor in such
Securities or, if not so specified, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
principal and interest, with interest upon the overdue principal, and
(to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest, at the rate specified therefor
in such Securities or, if not so specified, at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of
any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such
series, ratably to the aggregate of such principal and accrued and
unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 6.11 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Company, Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 6.12 Undertaking for Costs. In any suit
for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, in
either case in respect to the Securities of any series, a court may require any
party litigant in such suit (other than the Trustee) to file an undertaking to
pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant (other than
the Trustee) in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.12 does not
apply to a suit by a Holder pursuant to Section 6.7 or a suit by any Holder or
group of Holders of more than 10% in principal amount of the outstanding
Securities of such series.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.1 General. The duties and responsibilities of
the Trustee shall be as provided by the Trust Indenture Act and as set forth
herein. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article 7.
SECTION 7.2 Certain Rights of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers'
Certificate, Opinion of Counsel (or both), statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.4. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2,
whenever in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved
or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced
to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance
with Section 6.5 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(viii) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, Officers' Certificate, Opinion
of Counsel, Board Resolution, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding.
SECTION 7.3 Individual Rights of Trustee. The Trustee,
in its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not the Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Trust Indenture Act
Sections 310(b) and 311.
SECTION 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation
as to the validity or adequacy of this Indenture or the Securities and (ii)
shall be accountable for the Company's use or application of the proceeds from
the Securities.
SECTION 7.5 Notice of Default. If any Default with
respect to the Securities of any series occurs and is continuing the Trustee
shall give to each Holder of Securities of such series notice of such Default
known to it within 60 days after it occurs (i) if any Unregistered Securities
of such series are then outstanding, to the Holders thereof, by publication at
least twice in an Authorized Newspaper in London and in any other place of
payment for Unregistered Securities of such series and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless such Default shall have been cured or
waived before the mailing or publication of such notice; provided, however,
that, except in the case of a Default in the payment of the principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if Responsible Officer in good faith determines that the withholding of
such notice is in the interests of the Holders.
SECTION 7.6 Reports by Trustee to Holders. Within 60
days after each May 15, beginning with May 15, 1995, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section
313(c) a brief report dated as of such May 15, if required by Trust Indenture
Act Section 313(a).
SECTION 7.7 Compensation and Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed upon in writing
from time to time for its services. The compensation of the Trustee shall not
be limited by any law on compensation of a Trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee without negligence or bad faith in its part. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of this Indenture and the Securities or the
issuance of the Securities or of series thereof or the trusts hereunder and
the performance of duties under this Indenture and the Securities, including
the costs and expenses of defending itself against or investigating any claim
or liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers
or duties under this Indenture and the Securities.
The obligations of the Company under this Section 7.7 to
compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture or the
rejection or termination of this Indenture under bankruptcy law. Such
additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities or
coupons, and the Securities are hereby subordinated to such senior claim.
SECTION 7.8 Replacement of Trustee. A resignation or
removal of the Trustee as Trustee with respect to the Securities of any series
and an appointment of a successor Trustee as Trustee with respect to the
Securities of any series shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities of
any series may remove the Trustee as Trustee with respect to the Securities
of such series by so notifying the Trustee in writing and may appoint a
successor Trustee with respect thereto with the consent of the Company. The
Company may remove the Trustee as Trustee with respect to the Securities of any
series if: (i) the Trustee is no longer eligible under Section 7.10 of this
Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a
receiver or other public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to
the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor
Trustee appointed by the Company. If the successor Trustee with respect to
the Securities of any series does not deliver its written acceptance required
by the next succeeding paragraph of this Section 7.8 within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
of such series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (i) the retiring
Trustee shall promptly transfer all property held by it as Trustee in respect
of the Securities of such series to the successor Trustee, (ii) the
resignation or removal of the retiring Trustee in respect of the Securities of
such series shall become effective and (iii) the successor Trustee shall have
all the rights, powers and duties of the Trustee in respect of the Securities
of such series under this Indenture. A successor Trustee shall promptly mail
notice of its succession to each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
The Company shall promptly give notice of any resignation and
any removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee in respect of the Securities of such
series to all Holders of Securities of such series. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's
obligations under Section 7.7 shall continue for the benefit of the retiring
Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee with the same effect as if the successor Trustee had
been named as the Trustee herein.
SECTION 7.10 Eligibility. This Indenture shall always
have a Trustee who satisfies the requirements of Trust Indenture Act Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
SECTION 7.11 Money Held in Trust. The Trustee shall not
be liable for interest on any money received by it except as the Trustee may
agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and
except for money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 Defeasance Within One Year of Payment.
Except as otherwise provided in this Section 8.1, the Company may terminate
its obligations under the Securities of any series and this Indenture with
respect to Securities of such series if:
(i) all Securities of such series previously authenticated
and delivered (other than destroyed, lost or wrongfully taken
Securities of such series that have been replaced or Securities of
such series that are paid pursuant to Section 4.1 or Securities of
such series for whose payment money or securities have theretofore
been held in trust and thereafter repaid to the Company, as provided
in Section 8.5) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder; or
(ii) (A) the Securities of such series mature within one year
or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment,
to pay principal of and interest on the Securities of such series to
maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, (C) such deposit will not result in a breach
or violation of or constitute a default under this Indenture or any
other agreement or instrument to which the Company is a party or by
which it is bound, and (D) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series and of the Securities of such series have
been complied with.
With respect to the foregoing clause (i), only the Company's
obligations under Section 7.7 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the Company's
obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.11, 2.12, 2.14,
4.2, 7.7, 7.8, 8.4, 8.5 and 8.6 in respect of the Securities of such series
shall survive until the Securities of such series are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.7 and 8.5 in respect
of the Securities of such series shall survive. After any such irrevocable
deposit, the Trustee upon request shall acknowledge in writing the discharge
of the Company's obligations under the Securities of such series and this
Indenture with respect to the Securities of such series except for those
surviving obligations specified above.
SECTION 8.2 Defeasance. The Company will be deemed to
have paid and will be discharged from any and all obligations in respect of
the Securities of any series, the provisions of this Indenture will, except as
provided below, no longer be in effect with respect to the Securities of such
series, the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same and the Securities of any such series will
no longer be outstanding pursuant to Section 2.9; provided that the following
conditions shall have been satisfied:
(A) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the principal of and
interest on the Securities of such series, money or U.S. Government
Obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration
of any reinvestment and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by
the Trustee, to pay and discharge the principal of and accrued
interest on the outstanding Securities of such series to maturity or
earlier redemption (irrevocably provided for under arrangements
satisfactory to the Trustee), as the case may be;
(B) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound;
(C) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.2 and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been
exercised or (y) an Opinion of Counsel to the same effect as the
ruling described in clause (x) above and (2) an Opinion of Counsel to
the effect that the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens
under the Uniform Commercial Code, as in effect in each applicable
jurisdiction (the "UCC"); and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.2 of the Securities of such series
have been complied with.
The Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6,
2.7, 2.8, 2.11, 2.12, 2.14, 4.2, 7.7, 7.8, 8.4, 8.5 and 8.6 with respect to
the Securities of such series shall survive until such Securities are no longer
outstanding. Thereafter, only the Company's obligations in Sections 7.7 and
8.5 shall survive.
SECTION 8.3 Covenant Defeasance. The Company may omit to
comply with any term, provision or condition set forth in Sections 4.3, 4.4 or
4.5 (or any other specific covenant relating to such series provided for in a
Board Resolution or supplemental indenture pursuant to Section 2.3 which may
by its terms be defeased pursuant to this Section 8.3), and such omission
shall be deemed not to be an Event of Default under clauses (c) or (f) of
Section 6.1, with respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the
Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount
sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee)
without consideration of any reinvestment and after payment of all
federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, to pay and discharge the
principal of and interest on the outstanding Securities of such series
to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which
it is bound;
(iii) no Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the Holders of the Securities of such
series have a valid security interest in the trust funds subject to
no prior liens under the UCC and (B) such Holders will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had
not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.3 of the Securities of such
series have been complied with.
SECTION 8.4 Application of Trust Money. Subject to
Section 8.5, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3,
as the case may be, in respect of the Securities of any series and shall apply
the deposited money and the proceeds from deposited U.S. Government
Obligations in accordance with the Securities of such series and this
Indenture to the payment of principal of and interest on the Securities of such
series; but such money need not be segregated from other funds except to the
extent required by law.
SECTION 8.5 Repayment to Company. Subject to Sections
7.7, 8.1, 8.2 and 8.3, the Trustee and the Paying Agent shall promptly pay to
the Company upon request set forth in an Officers' Certificate any excess
money held by them at any time and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying Agent shall
pay to the Company upon written request any money held by them under this
Indenture that remains unclaimed for two years; provided that the Trustee or
such Paying Agent before being required to make any payment to the Company
shall cause to be published at the expense of the Company twice in an
Authorized Newspaper in The City of New York or with respect to any Security
the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits in an Authorized Newspaper in London or
mail to each Holder entitled to such money at such Holder's address (as set
forth in the Security Register) notice that such money remains unclaimed and
that after a date specified therein (which shall be at least 30 days from the
date of such publication or mailing) any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look to the Company for payment as general
creditors unless an applicable law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
SECTION 8.6 Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 8.1, 8.2 or 8.3, as the case may be, by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
of such series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.1, 8.2 or 8.3 and the Trustee or Paying Agent
shall promptly pay to the Company upon written request any money or U.S.
Government Obligations deposited with it pursuant thereto; provided that if
the Company has made any payment of interest on or principal of any Securities
of such series because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders. The Company and
the Trustee may amend or supplement this Indenture or the Securities of any
series without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act as then in effect;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee; or
(5) to establish the form or forms or terms of the Securities
of any series or of any coupons appertaining to such Securities
pursuant to Section 2.3;
(6) to provide for uncertificated or Unregistered Securities
and to make all appropriate changes for such purpose; and
(7) to make any change that does not materially and adversely
affect the rights of any Holder.
In no event shall a supplemental indenture executed under this
Section 9.1 provide that Unregistered Securities may be issued in exchange for
Registered Securities, including Registered Securities that were previously
issued in exchange for Unregistered Securities.
SECTION 9.2 With Consent of Holders. The Company and the
Trustee may amend this Indenture and the Securities of any series for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or modifying in any manner the rights
of Holders under this Indenture of such Securities, but only with the written
consent of the Holders of a majority in principal amount of the outstanding
Securities of each series affected by such supplemental indenture voting
separately; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each outstanding Security of each series
affected thereby,
(i) extend the stated maturity of the principal of, or any
sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the principal amount thereof or the rate
of interest thereon (including any amount in respect of original
issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such Holder under any mandatory
redemption or repurchase provision or any right of redemption or
repurchase at the option of the Company or such Holder, or reduce the
amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof
pursuant to Section 6.2 or the amount thereof provable in bankruptcy,
or change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment
on or after the due date therefor, or change the manner of
determining any of the foregoing established pursuant to Section 2.3
for the Securities of any series;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture;
(iii) waive a Default in the payment of principal of or interest
on any Security of such Holder; or
(iv) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section
4.2; or
(v) modify any of the provisions of this Section 9.2, except
to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of Holders of Securities of such
series with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series or of the coupons appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
will mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
In no event shall a supplemental indenture executed under this
Section 9.2 provide that Unregistered Securities may be issued in exchange for
Registered Securities, including Registered Securities that were previously
issued in exchange for Unregistered Securities.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment, supplemental indenture or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
Security of the consenting Holder, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of its Security. Such revocation shall
be effective only if the Trustee receives the notice of revocation before the
date the amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective with respect to any Securities
affected thereby on receipt by the Trustee of written consents from the
requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(i) through (v) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (i) through (v) of Section 9.2, the amendment,
supplemental indenture or waiver shall bind each such Holder who has consented
to it and every subsequent Holder of a Security that evidences the same
indebtedness as the Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and
return it to the Holder and the Trustee may place an appropriate notation on
any Security of such series thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security of the same
series and tenor that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article 9 is authorized or permitted by
this Indenture, stating that all requisite consents have been obtained or that
no consents are required and stating that such supplemental indenture
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
customary exceptions. Subject to the preceding sentence, the Trustee shall
sign such amendment, supplement or waiver if the same does not adversely affect
the rights of the Trustee. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to
the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices. Any notice or communication shall
be sufficiently given if written and (a) if delivered in person when received
or (b) if mailed by first class mail 5 days after mailing, or (c) as between
the Company and the Trustee if sent by facsimile transmission, when
transmission is confirmed, in each case addressed as follows:
if to the Company:
Illinois Central Railroad Company
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
Attention: Chief Financial Officer
Telephone No.: (312) 755-7500
Telecopy No.: (312) 755-7839
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Samuel F. Pryor, III
Telephone No.: (212) 450-4000
Telecopier No.: (212) 450-4800
if to the Trustee:
The First National Bank of Boston
Blue Hills Office Park
150 Royall Street
Canton, MA 02021
Attention: Corporate Trust Division
Mail Stop 45-02-15
(Illinois Central Railroad
Company 1995 Indenture)
with a copy to:
Shipman & Goodwin
One American Row
Hartford, CT 06103-2819
Attention: Daniel P. Brown, Jr.
Telephone No.: (203) 251-5919
Telecopier No.: (203) 251-5999
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities by publication at least twice in an
Authorized Newspaper in London and in any other place of payment for such
Unregistered Securities, and by mailing to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of
the Trust Indenture Act at such addresses as were so furnished to the Trustee
and to Holders of Registered Securities by mailing to such Holders at their
addresses as they shall appear on the Securities Register. Notice mailed
shall be sufficiently given if so mailed within the time prescribed. Copies of
any such communication or notice to a Holder shall also be mailed to the
Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided in this Section 10.2, it is duly given,
whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.2 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such Counsel, all such conditions precedent have been complied with.
SECTION 10.3 Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion
of Counsel may rely on an Officers' Certificate or certificates of
public officials.
SECTION 10.4 Evidence of Ownership. The Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
Holder of any Unregistered Security and the Holder of any coupon as the
absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes, and neither
the Company, the Trustee, nor any agent of the Company or the Trustee shall
be affected by any notice to the contrary. The fact of the holding by any
Holder of an Unregistered Security, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank,
banker or recognized securities dealer wherever situated satisfactory to the
Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on the
date thereof a Security bearing a specified identifying number was deposited
with or exhibited to such trust company, bank, banker or recognized securities
dealer by the person named in such certificate. Any such certificate may be
issued in respect of one or more Unregistered Securities specified therein.
The holding by the person named in any such certificate of any Unregistered
Securities specified therein shall be presumed to continue for a period of one
year from the date of such certificate unless at the time of any determination
of such holding (1) another certificate bearing a later date issued in respect
of the same Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject to
Article 7, the fact and date of the execution of any such instrument and the
amount and numbers of Securities held by the Person so executing such
instrument may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in any other manner which
the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest on
such Registered Security and for all other purposes; and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary.
SECTION 10.5 Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.6 Payment Date Other Than a Business Day. If
any date for payment of principal or interest on any Security shall not be a
Business Day at any place of payment for such Security, then payment of
principal of or interest on such Security, as the case may be, need not be
made on such date, but may be made on the next succeeding Business Day at any
place of payment with the same force and effect as if made on such date and no
interest shall accrue in respect of such payment for the period from and after
such date.
SECTION 10.7 Governing Law. The laws of the State of New
York shall govern this Indenture and the Securities.
SECTION 10.8 No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another indenture or
loan or debt agreement of the Company or any Subsidiary of the Company. Any
such indenture or agreement may not be used to interpret this Indenture.
SECTION 10.9 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 10.10 Duplicate Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 10.11 Separability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.12 Table of Contents, Headings, Etc. The Table
of Contents and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms and
provisions hereof.
SECTION 10.13 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security or any coupons appertaining thereto, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer, director or
employee, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such personal liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 10.14 Judgment Currency. The Company agrees, to
the fullest extent that it may effectively do so under applicable law, that
(a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of or interest on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
[SEAL] ILLINOIS CENTRAL RAILROAD
COMPANY
Attest: as the Company
________________
By:_______________________________
Name:
Title:
[SEAL]
THE FIRST NATIONAL BANK
OF BOSTON
Attest: as Trustee
________________
By:_______________________________
Name:
Title:
EXHIBIT 5
April 11, 1995
Illinois Central Railroad Company
455 North Cityfront Plaza Drive
Chicago, Illinois 60611-5504
Dear Sirs:
We have acted as counsel for Illinois Central Railroad Company,
a Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") being filed
with the Securities and Exchange Commission. The Registration Statement
relates to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of $200,000,000 aggregate principal amount of debt securities (the
"Securities") of the Company. The Securities are to be issued pursuant to an
indenture (the "Indenture"), between the Company and The First National Bank
of Boston, as trustee (the "Trustee").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for purposes of this opinion.
Based upon the foregoing, we are of the opinion that when (i)
the Registration Statement becomes effective, (ii) duly authorized officers of
the Company have taken all necessary action to approve the forms and terms of
the Securities, (iii) the proposed Indenture pursuant to which the Notes are
to be issued shall have been qualified under the Trust Indenture Act of 1939,
as amended, and duly executed and delivered by duly authorized officers of the
Company and the Trustee, and (iv) the Securities are executed and
authenticated in accordance with the terms of the Indenture and delivered to
the purchasers thereof upon payment of the agreed upon consideration therefor,
the Securities will be validly issued and binding obligations of the Company.
We are members of the Bar of the State of New York and the
foregoing opinion is limited to the laws of the State of New York, the Federal
laws of the United States of America, and the General Corporation Law of the
State of Delaware.
The opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other
purposes or relied upon or furnished to any other person without our prior
written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. We also consent to the reference to us under
the Caption "Legal Matters" in the Prospectus contained in the Registration
Statement.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 12.1
ILLINOIS CENTRAL RAILROAD COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
($ in millions)
<TABLE>
<CAPTION>
__________________________________________________________________
Fixed Charge Coverage 1994 1993 1992 1991 1990
- --------------------------------------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Income from continuing operations
before income taxes, extraordinary
item and cumulative effect of
accounting changes $ 170.9 $ 148.6 $ 111.0 $ 96.0 $ 68.6
Fixed charges 45.2 49.9 61.1 75.9 92.5
Capitalized interest (1.4) (0.8) (0.6) (0.4) (0.5)
---------- ---------- ---------- ---------- ----------
Earnings base for fixed charge ratio $ 214.7 $ 197.7 $ 171.5 $ 171.5 $ 160.6
========== ========== ========== ========== ==========
Interest expense $ 27.5 $ 33.1 $ 44.5 $ 59.2 $ 75.4
Capitalized interest 1.4 0.8 0.6 0.4 0.5
Portion of non-capitalized lease
payments 16.3 16.0 16.0 16.3 16.6
---------- ---------- ---------- ---------- ----------
Fixed charges $ 45.2 $ 49.9 $ 61.1 $ 75.9 $ 92.5
========== ========== ========== ========== ==========
Ratio of earnings to fixed charges 4.75 3.96 2.81 2.26 1.74
========== ========== ========== ========== ==========
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
ILLINOIS CENTRAL RAILROAD COMPANY
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 17, 1995, included in Illinois Central Railroad Company's Form 10-K
for the year ended December 31, 1994 and to all references to our Firm
included in this Registration Statement.
Arthur Andersen LLP
Chicago, Illinois
April 11, 1995
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)_______
______________________
THE FIRST NATIONAL BANK OF BOSTON
(Exact name of Trustee as specified in its charter)
04-2472499
(I.R.S. Employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Gary A. Spiess, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110 (617) 434-2870
(Name, address and telephone number of agent for service)
__________________________
ILLINOIS CENTRAL RAILROAD COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
455 NORTH CITYFRONT PLAZA DRIVE
CHICAGO, IL 60611-5504
(Address of principal executive offices)
36-2728842
(I.R.S. Employer Identification No.)
DEBT SECURITIES
(Title of Indenture Securities)
1. General Information.
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency of the United States, Washington D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
------------------------------------------
If the obligor or any underwriter for the obligor is an affiliate
of the trustee, describe each such affiliation.
None with respect to the Trustee.
(See Notes on page 2)
None with respect to Bank of Boston Corporation.
3. thru 15. Not applicable.
--------------
16. List of Exhibits.
----------------
List below all exhibits filed as part of this statement of
eligibility and qualification.
1. A copy of the articles of association of the trustee as now
in effect.
A certified copy of the Articles of Association of the trustee is
filed as Exhibit No. 1 to statement of eligibility and qualification
No. 22-9514 and is incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of association.
A copy of the certificate of T. McLean Griffin, Cashier of the
trustee, dated February 3, 1978, as to corporate succession containing
copies of the Certificate of the Comptroller of the Currency that The
Massachusetts Bank, National Association, into which The First National
Bank of Boston was merged effective January 4, 1971, is authorized to
commence the business of banking as a national banking association, as
well as a certificate as to such merger is filed as Exhibit No. 2 to
statement of eligibility and qualification No. 22-9514 and is incorporated
herein by reference thereto.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained in the
documents specified in paragraph (1) or (2) above.
A copy of a certificate of the Office of the Currency dated
February 6, 1978 is filed as Exhibit No. 3 to statement of eligibility
and qualification No. 22-9514 and is incorporated herein by reference
thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A certified copy of the existing By-Laws of the trustee dated
December 23,1993 is filed as Exhibit No. 4 to statement of eligibility
and qualifications No. 22-25754 and is incorporated herein by reference
thereto.
5. Not applicable
6. The consent of the trustee required by Section 321(b) of the
Act.
The consent of the trustee required by Section 321(b) of the Act
is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item in this Statement of Eligibility and
Qualification which relates to matters peculiarly within the knowledge
of the obligor or any underwriter for the obligor, the trustee has
relied upon information furnished to it by the obligor and the
underwriters, and the trustee disclaims responsibility for the accuracy
or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and
which would have been required to be stated if known at the date
hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The First National Bank of Boston, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Boston and Commonwealth of
Massachusetts, on the 7 th day of April, 1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By Henry W. Seemore
-----------------------------
Henry W. Seemore
Account Manager
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, in connection with the proposed issue of Debt Securities of
Illinois Central Railroad Company, we hereby consent that reports of
examinations by Federal, State, Territorial, or District authorities may
be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By Henry W. Seemore
-----------------------------
Henry W. Seemore
Account Manager
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION, INCLUDING DOMESTIC AND FOREIGN
SUBSIDIARIES, OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business on December
31, 1994. Published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161. Charter number 200.
Comptroller of the Currency Northeastern District.
ASSETS
Dollar
Amounts in
Thousands
------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..... $ 1,862,093
Interest-bearing balances .......................... 1,551,280
Securities................................................ 3,935,691
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds sold................................... 758,937
Securities purchased under agreements to resell...... 0
Loans and lease financing receivables:
Loans and leases, net of unearned income ........... $25,796,462
LESS: Allowance for loan and lease losses........... 534,630
LESS: Allocated transfer risk reserve............... 0
Loans and leases, net of unearned income, allowance
and reserve ...................................... 25,261,832
Assets held in trading accounts.......................... 840,348
Premises and fixed assets (including capitalized leases). 398,475
Other real estate owned.................................. 48,504
Investments in unconsolidated subsidiaries and
associated companies .................................. 103,670
Customers' liability to this bank on acceptances
outstanding............................................ 304,031
Intangible assets........................................ 651,394
Other assets............................................. 1,170,251
-----------
Total Assets....................................... $36,886,506
===========
LIABILITIES
Deposits:
In domestic offices................................. $14,924,310
Noninterest-bearing................................. $ 4,035,673
Interest-bearing.................................... 10,888,637
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ............................................ 9,998,764
Noninterest-bearing................................. 570,582
Interest-bearing.................................... 9,428,182
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank
and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased............................. 2,464,904
Securities sold under agreements to repurchase...... 277,077
Demand notes issued to the U.S. Treasury................. 364,045
Trading Liabilities...................................... 227,865
Other borrowed money..................................... 3,875,462
Mortgage indebtedness and obligations under
capitalized leases .................................... 14,007
Bank's liability on acceptances executed and outstanding. 305,512
Subordinated notes and debentures........................ 979,167
Other liabilities........................................ 1,022,105
Total Liabilities................................... $34,453,218
===========
Limited-life preferred stock and equity capital.......... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............ $ 0
Common stock............................................. 82,264
Surplus.................................................. 987,524
Undivided profits and capital reserves................... 1,408,062
LESS: Net unrealized loss on marketable equity securities (39,027)
Cumulative foreign currency translation adjustments...... (5,535)
Total equity capital..................................... 2,433,288
-----------
Total Liabilities, Limited-life preferred stock,
and equity....................................... $36,866,506
===========
I, Robert T. Jefferson, Comptroller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
/s/ Robert T. Jefferson
February 13, 1995
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been
examined by us, and to the best of our knowledge and belief has been
prepared in conformance with the instructions and is true and correct.
Charles K. Gifford Ira Stepanian J. Donald Monan
Directors
February 13, 1995
NOTES
In answering any item in this Statement of Eligibility and
Qualification which relates to matters peculiarly within the knowledge
of the obligor or any underwriter for the obligor, the trustee has
relied upon information furnished to it by the obligor and the
underwriters, and the trustee disclaims responsibility for the accuracy
or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and
which would have been required to be stated if known at the date
hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The First National Bank of Boston, a national banking
association organized and existing under the laws of the United States
of America, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Boston and Commonwealth of
Massachusetts, on the 7 th day of April, 1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By /s/ Henry W. Seemore
-------------------------------
Henry W. Seemore
Account Manager
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, in connection with the proposed issue of Debt Securities
of Illinois Central Railroad Company, we hereby consent that reports of
examinations by Federal, State, Territorial, or District authorities
may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By /s/ Henry W. Seemore
-------------------------------
Henry W. Seemore
Account Manager
