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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 29, 1996
ILLINIOS CENTRAL RAILROAD COMPANY
(Exact name of Registrant as specified in its charter)
Delaware 1-7092 36-2728842
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
455 North Cityfront Plaza Drive, Chicago, Illinois 60611-5504
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (312) 755-7500
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Item 7. Exhibits
(c) Exhibits
1.1 Distribution Agreement dated July 29, 1996
between Illinois Central Railroad Company and
the Agents named therein
4.3 Form of fixed and floating rate Medium-Term
Notes, Series B
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereto duly authorized.
ILLINOIS CENTRAL RAILROAD COMPANY
/s/ John V. Mulvaney
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Name: John V. Mulvaney
Title: Controller
Date: July 29, 1996
EXHIBIT INDEX
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Sequential
Exhibit No. Description Page. No.
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1.1 Distribution Agreement dated July 29, 1996
between Illinois Central Railroad Company and
the Agents named therein
4.3 Form of fixed and floating rate Medium-Term
Notes, Series B
EXHIBIT 1.1
U.S. $200,000,000(*)
Illinois Central Railroad Company
Medium-Term Notes, Series B
DISTRIBUTION AGREEMENT
July 29, 1996
Lehman Brothers Inc.
BA Securities, Inc.
Chase Securities Inc.
Deutsche Morgan Grenfell / C.J. Lawrence Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Smith Barney Inc.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
Illinois Central Railroad Company, a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents") with respect to the issuance and sale by the
Company of up to an aggregate of $ 200,000,000* in gross proceeds of its
Medium-Term Notes, Series B (the "Notes"). The Notes are to be issued from
time to time pursuant to an indenture, dated as of July 25, 1996 (as it may be
supplemented or amended from time to time, the "Indenture"), between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to
in Section 1(a) as it may be amended or supplemented from time to time,
including any supplement providing for the interest rate, maturity and other
terms of any Note (a "Pricing Supplement"). The Notes will be issued, and the
terms thereof established, from time to time, by the Company in accordance
with the Indenture and the Procedures referred to below. This Agreement shall
only apply to sales of the Notes and not to sales of any other securities or
evidences of indebtedness of the Company and only on the specific terms set
forth herein.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell its Notes directly on its own behalf, the
Company hereby (i) appoints each of the Agents as the agent of the Company for
the purpose of soliciting and receiving offers to purchase Notes from the
Company and (ii) agrees that whenever the Company determines to sell Notes
directly to an Agent as principal it will enter into a separate agreement
(each a "Purchase Agreement"). Each such Purchase Agreement, whether oral
(and confirmed in writing, which may be by facsimile transmission) or in
writing, shall be with respect to such information (as applicable) as
specified in Exhibit C hereto, relating to such sale in accordance with
Section 2(e) hereof.
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(*) Or the U.S. dollar equivalent in certain specified foreign currencies or
currency units.
SECTION 1. Representations and Warranties.
The Company represents and warrants to each Agent as of the date hereof, as
of the Closing Date (defined herein) and as of the times referred to in
Sections 6(a) and 6(b) hereof (the Closing Date and each such time being
hereinafter sometimes referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (Registration No. 333-03825) with
respect to the Notes (i) has been prepared by the Company in conformity with
the requirements of the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and Regulations")
of the U.S. 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 Notes, 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
Notes, 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 pursuant to
Rule 424, is herein referred to as the "Prospectus Supplement", and any such
preliminary prospectus supplement in the form filed 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 1(a), as amended at the time of the applicable Representation Date,
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 and the
Pricing 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 U.S.
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, 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 applicable Representation Date and at all times during each period
during which, in the opinion of counsel for the Agents, a prospectus relating
to the Notes is required to be delivered under the Act (each a "Marketing
Period"), 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 (the "Form T-1")
under the Trust Indenture Act of the 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 Agent 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 this Agreement and the Purchase Agreement (if any) and perform its
obligations hereunder and thereunder; each of this Agreement and the Purchase
Agreement (if any) 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 Rule 405
of the Rules and Regulations) 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 this Agreement and each applicable Purchase Agreement, if any,
and compliance by the Company with the provisions of the Indenture and the
Notes 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 ICC Termination Act of 1995, 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 this Agreement or each applicable
Purchase Agreement, if any, or compliance with the provisions of the Indenture
and the Notes 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 LLP, 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 Notes have
been duly authorized by the Company, and, when the terms of the Notes and of
their issue and sale have been duly established in accordance with the
Indenture and this Agreement, and the Notes have been duly executed,
authenticated, issued and delivered against payment therefor as provided
herein and the Indenture, the Notes will be duly executed, duly authenticated,
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 Notes 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.
(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, and as of the
applicable Representation Date will 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, and will be as of the
applicable Representation Date and at all times during each Marketing Period,
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 this Agreement or each applicable Purchase Agreement, if
any, have the right to request or demand that the Company register under the
Securities Act securities held by them.
SECTION 2. Solicitations as Agent; Purchases as Principal
(a) Appointment. Subject to the terms and conditions stated herein, the
Company hereby appoints each of the Agents as one of the exclusive agents of
the Company for the purpose of soliciting or receiving offers to purchase the
Notes from the Company by others. On the basis of the representations and
warranties contained herein, but subject to the terms and conditions herein
set forth, each Agent agrees, as one of the exclusive agents of the Company,
to use its reasonable efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth in the Prospectus. Except as otherwise
provided herein, so long as this Agreement shall remain in effect with respect
to any Agent, the Company shall not, without the consent of each such Agent,
solicit or accept offers to purchase Notes otherwise than through one of the
Agents provided, however, the Company expressly reserves the right to sell
Notes directly to investors, in which case the Agents shall not receive any
commission with respect to such sale. Each Agent may also purchase Notes from
the Company as principal for purposes of resale, as more fully described in
paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the right, in its
sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt
of at least one business day's prior written notice from the Company, the
Agents will forthwith suspend solicitation of offers to purchase Notes from
the Company until such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of this agreement, "business
day" shall mean any day which is not a Saturday or Sunday and which is not a
day on which (i) banking institutions are generally authorized or obligated by
law to close in The City of New York and (ii) The New York Stock Exchange,
Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Section 3(d)
hereof, each Agent shall suspend its solicitation of offers to purchase Notes
until such time as the Company shall have furnished it with an amendment or
supplement to the Registration Statement or the Prospectus, as the case may
be, contemplated by Section 3(d) and shall have advised such Agent that such
solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any Notes
sold by the Company as a result of a solicitation made by or offer to purchase
received by an Agent, the Company agrees to pay such Agent a commission, in
accordance with the schedule relating to the Notes set forth in Exhibit A
hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit offers to
purchase the Notes only in denominations as are specified in the Prospectus at
a purchase price as shall be specified by the Company. Each Agent shall
communicate to the Company, orally or in writing, each reasonable offer to
purchase Notes received by it as an Agent. The Company shall have the sole
right to accept offers to purchase the Notes and may reject any such offer in
whole or in part. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any offer to
purchase the Notes received by it, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to this Agreement
shall be deemed to have been purchased and paid for, or sold by the Company,
until such Note shall have been delivered to the purchaser thereof against
payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as principal,
for resale to one or more investors or to another broker-dealer (acting as
principal for purposes of resale), shall be made in accordance with the terms
of this Agreement and a Purchase Agreement whether oral (and confirmed in
writing by such Agent to the Company, which may be by facsimile transmission)
or in writing, which will provide for the sale of such Notes to, and the
purchase thereof by, such Agent. A Purchase Agreement may also specify
certain provisions relating to the reoffering of such Notes by such Agent. The
commitment of any Agent to purchase Notes from the Company as principal shall
be deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Purchase Agreement shall specify the
principal amount and terms of the Notes to be purchased by an Agent, the time
and date (each such time and date being referred to herein as a "Time of
Delivery") and place of delivery of and payment for such Notes and such other
information (as applicable) as is set forth in Exhibit C hereto. The Company
agrees that if any Agent purchases Notes as principal for resale such Agent
shall receive such compensation, in the form of a discount or otherwise, as
shall be indicated in the applicable Purchase Agreement or, if no compensation
is indicated therein, a commission in accordance with Exhibit A hereto. Any
Agent may utilize a selling or dealer group in connection with the resale of
such Notes. In addition, the Agents may offer the Notes they have purchased
as principal to other dealers. Any Agent may sell Notes to any dealer at a
discount. Such Purchase Agreement shall also specify any requirements for
delivery of opinions of counsel, accountant's letters and officers'
certificates pursuant to Section 5 hereof.
(f) Administrative Procedures. Administrative procedures respecting the
sale of Notes (the "Procedures") are set forth in Exhibit B hereto and may be
amended in writing from time to time by the Agents and the Company. Each
Agent and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder including sales of Notes to any Agent as principal pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, New York 10017, not later than 10:00
A.M., New York City time, on the date of this Agreement or at such later time
as may be mutually agreed upon by the Company and the Agents, which in no
event shall be later than the time at which the Agents commence solicitation
of offers to purchase Notes hereunder (the "Closing Date").
SECTION 3. Covenants of the Company
The Company agrees to furnish promptly to Simpson Thacher & Bartlett,
counsel for the Agents, one signed copy of the Registration Statement,
including all exhibits, in the form it became effective and of all amendments
thereto and, in connection with each offering of Notes, the Company further
agrees:
(a) Delivery of Signed Registration Statement and Other Documents. To
deliver promptly to each Agent and counsel to the Agents 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 Agreement)
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 Agent and counsel to the Agents may request;
(b) Commission Filings. To prepare a Prospectus Supplement relating to the
Notes in a form approved by the Agents and to file the Prospectus, including
the Prospectus Supplement and any Pricing Supplement, with the Commission
pursuant to the applicable provisions of Rule 424(b) of the Rules and
Regulations within the time period and, during any Marketing Period, (i) to
file any amendment to the Registration Statement or any supplement to the
Prospectus that may, in the reasonable judgment of the Company or the Agents,
be required by the Securities Act or requested by the Commission, (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 Agents,
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) Copies of Filings with Commission. Prior to filing with the Commission
during any Marketing Period 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 Agents
and counsel for the Agents and obtain the consent of the Agents to the filing;
(d) Notice to Agents of Certain Events. To advise the Agents and counsel
to the Agents 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 Notes for sale in any jurisdiction
or the initiation or threat of any proceeding for that purpose, (v) of any
downgrading in the rating accorded the Notes or any other debt securities of
the Company, or any proposal to downgrade the rating of the Notes or any other
debt securities of the Company, 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, or of any public announcement
that any such organization has under surveillance or review, with possible
negative implications, its rating of the Notes or any of the Company's debt
securities as soon as the Company learns of such downgrading, proposal to
downgrade or public announcement and (vi) 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) Stop Orders. If, during any Marketing Period, 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 Notes 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) Earnings Statements. As soon as practicable, but not later than 16
months after the date of each acceptance by the Company of an offer to
purchase Notes hereunder, to make generally available to its security holders
and to the Agents 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 acceptance 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 acceptance;
(g) Copies of Reports, Releases and Financial Statements. For a period of
three years after the applicable Representation Date, to furnish to the Agents
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) Blue Sky Qualifications. Promptly from time to time to take such
action as the Agents may reasonably request to qualify the Notes for offering
and sale under the securities laws of such jurisdictions as the Agents 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 Notes;
(i) Holdback. Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, the Company will not offer or
sell, or enter into any agreement to sell, any of its debt securities, other
than borrowings under the Company's revolving credit agreements and lines of
credit, the private placement of securities and issuances of its commercial
paper;
(j) Use of Proceeds. To apply the net proceeds from the sale of the Notes
being sold by the Company as set forth in the Prospectus.
(k) Revisions to Prospectus - Material Changes. If, during any Marketing
Period, any event occurs as a result of which the Prospectus would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, not misleading, or if it is
necessary at any time to amend any Prospectus to comply with the Securities
Act, to notify the Agents promptly, in writing, to suspend solicitation of
purchases of the Notes; and if the Company shall decide to amend or supplement
the Registration Statement or any Prospectus, to promptly advise the Agents by
telephone (with confirmation in writing) and to promptly, in writing, prepare
and file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance;
provided, however, that if during the period referred to above any Agent shall
own any Notes which it has purchased from the Company as principal with the
intention of reselling them, the Company shall promptly prepare and timely
file with the Commission any amendment or supplement to the Registration
Statement or any Prospectus that may, in the judgment of the Company or the
Agents, be required by the Securities Act or requested by the Commission.
(l) Pricing Supplement. To prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by the Agents and to file
such Pricing Supplement pursuant to Rule 424 under the Securities Act with the
Commission, in each case, within the applicable time period prescribed for
such filing by the Rules and Regulations.
SECTION 4. Payment of Expenses
The Company will pay:
(i) the costs incident to the authorization, issuance, sale and delivery
of the Notes and any taxes payable in that connection,
(ii) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and
exhibits thereto,
(iii) the costs incident to the preparation, printing and filing of any
document and any amendments and exhibits thereto required to be filed by
the Company under the Exchange Act,
(iv) the costs of distributing the Registration Statement, as originally
filed, and each amendment and post-effective amendment thereof (including
exhibits), the Basic Prospectus, each Prospectus, any supplement or
amendment to any Prospectus and any documents incorporated by reference in
any of the foregoing documents,
(v) the fees and disbursements of the Trustee, any paying agent, any
calculation agent, any exchange rate agent and any other agents appointed
by the Company, and their respective counsel,
(vi) the costs and fees in connection with the listing of the Notes on
any securities exchange,
(vii) the cost and fees in connection with any filings with the National
Association of Securities Dealers, Inc.,
(viii) the fees and disbursements of counsel to the Company and counsel to
the Agents,
(ix) the fees paid to rating agencies in connection with the rating of
the Notes,
(x) the fees and expenses of qualifying the Notes under the securities
laws of the several jurisdictions as provided in Section 3(h) hereof and of
preparing and printing a Blue Sky Memorandum (including fees and expenses
of counsel for the Agents in connection therewith),
(xi) all advertising expenses in connection with the offering of the
Notes incurred with the consent of the Company, and
(xii) all other costs and expenses arising out of the transactions
contemplated hereunder and incident to the performance of the Company's
obligations under this Agreement or otherwise in connection with the
activities of the Agents under this Agreement.
SECTION 5. Conditions of Obligations of Agent
The obligation of the Agents, as the agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any
person who has agreed to purchase Notes to make payment for and take delivery
of Notes, and the obligation of any Agent to purchase Notes pursuant to any
Purchase Agreement, is subject to the accuracy, on each Representation Date,
of the representations and warranties of the Company contained herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms
and conditions:
(a) Registration Statement. The Prospectus as amended or supplemented
(including the Pricing Supplement) with respect to such Notes shall have been
filed with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the Rules and Regulations
and in accordance with Section 3(l) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any order
directed to any document incorporated by reference in any Prospectus shall
have been issued and no stop order proceeding shall have been initiated or
threatened by the Commission and no challenge shall have been made to the
accuracy or adequacy of any document incorporated by reference in any
Prospectus; any request of the Commission for inclusion of additional
information in the Registration Statement or any Prospectus or otherwise shall
have been complied with; and the Company shall not have filed with the
Commission any amendment or supplement to the Registration Statement or any
Prospectus (or any document incorporated by reference therein) without the
consent of the Agents.
(b) No Suspension of Sale of the Notes. No order suspending the sale of
the Notes in any jurisdiction designated by the Agents pursuant to Section
3(h) hereof shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened.
(c) No Material Omissions or Untrue Statements. No Agent shall have
discovered and disclosed to the Company that the Registration Statement or any
Prospectus contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, 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) Legal Matters Satisfactory to Counsel. All corporate proceedings and
other legal matters incident to the authorization, form and validity of this
Agreement, the Notes, the Indenture, the form of the Registration Statement,
each Prospectus (other than financial statements and other financial data) and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel for the
Agents 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 counsel to the Agents shall have furnished the Agents their
favorable opinion with respect to such matters and such additional matters as
the Agents may reasonably request.
(e) Opinions of Company Counsel. At the Closing Date, the Agents shall
have received (1) the opinion, addressed to the Agents and dated the Closing
Date, of Davis Polk & Wardwell, outside counsel to the Company, in form and
substance satisfactory to the Agents and their counsel, 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 this Agreement and the Purchase Agreement (if any) and to perform
its obligations hereunder and 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 Notes have been duly authorized, and assuming due execution,
authentication and delivery of the Notes in accordance with the provisions
of the Indenture and delivery of and payment for the Notes in accordance
with this Agreement and the Purchase Agreement (if any), 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 Notes 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 Closing 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" and "Description of Notes", 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 Form S-3; and
(ix) Each of this Agreement and the Purchase Agreement (if any) has
been duly authorized, executed and delivered by the Company. The
execution, delivery and performance by the Company of this Agreement and
the Purchase Agreement (if any), and the compliance by the Company with the
provisions of the Indenture and the Notes, 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 ICC
Termination Act of 1995, 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 this Agreement and the Purchase Agreement (if
any), and compliance with the provisions of the Indenture and the Notes 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 Agents a
statement, addressed to the Agents, dated the Closing Date to the effect that
(i) such counsel has acted as counsel to the Company only in connection with
the preparation of the Registration Statement and (ii) based on the foregoing,
no facts have come to the attention of such counsel which lead them to believe
that (x) 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 Closing 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 (y) 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 Closing 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 captions "Description of
Securities" and "Description of Notes" insofar as such statements relate to the
Notes 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 ICC Termination Act of 1995 and has relied,
without independent investigation, upon the opinion of Myles Tobin, Esq.,
Associate General Counsel of the Company, dated the Closing Date as to the
matters set forth therein;
(2) The opinion, addressed to the Agents and dated the Closing Date, of
Ronald Lane, General Counsel of the Company, or Myles Tobin, Esq., Associate
General Counsel of the Company, in form and substance satisfactory to the
Agents and their counsel, 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 Notes have been duly authorized, and assuming due execution,
authentication and delivery of the Notes in accordance with the provisions
of the Indenture and delivery of and payment for the Notes in accordance
with this Agreement and each applicable Purchase Agreement (if any), 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 Notes 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) Each of this Agreement and the Purchase Agreement (if any) has
been duly authorized, executed and delivered by the Company; the execution,
delivery and performance by the Company of this Agreement and the Purchase
Agreement (if any) and compliance by the Company with the provisions of the
Indenture and the Notes 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 this Agreement and the Purchase Agreement (if any), and
compliance with the provisions of the Indenture and the Notes by the
Company, except such as may be required by the Securities Act, state
securities laws or the ICC Termination Act of 1995; and
(ix) The execution and delivery of this Agreement and the Purchase
Agreement (if any) 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 this Agreement and the Purchase Agreement (if any).
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 Agents a statement,
addressed to the Agents, dated the Closing 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 Closing 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 captions "Description of Securities" and "Description of
Notes" insofar as such statements relate to the Notes and concern legal
matters. If rendered by counsel other than Myles Tobin, Esq., 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 ICC Termination Act
of 1995 and has relied, without independent investigation, upon the opinion of
Myles Tobin, Esq., Associate General Counsel of the Company, dated the Closing
Date as to the matters set forth therein; and
(3) The opinion, addressed to the Agents and dated the Closing Date, of Myles
Tobin, Esq., Associate General Counsel to the Company, in form and substance
satisfactory to the Agents and their counsel, to the effect that the
execution, delivery and performance of this Agreement and the Purchase
Agreement (if any) will not conflict with or result in a violation of the ICC
Termination Act of 1995 or any order, rule or regulation of the Surface
Transportation Board ("STB") or the Department of Transportation, and no
consent, authorization or order of, or filing or registration with, the STB,
the Department of Transportation or any other governmental authority pursuant
to the ICC Termination Act of 1995 or the rules and regulations thereunder.
(f) Officers' Certificate. The Company shall have furnished to the Agents
on the Closing Date a certificate, dated the Closing Date, signed on behalf of
the Company by its Chief Executive Officer and by the Vice President and Chief
Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in
Section 1 hereof are true and correct as of the Closing Date; the Company
has complied with all its agreements contained herein; and the conditions
on its part to be fulfilled prior to the Closing Date set forth herein 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 Effective Date, 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.
(g) Accountant's Letter. The Company shall have furnished to the Agents
on the Closing Date a letter of Arthur Andersen LLP, addressed jointly to the
Company and the Agents and dated the Closing Date, of the type described in
the American Institute of Certified Public Accountants' Statement on Auditing
Standards No. 72, covering such specified financial statement items and
procedures as the Agents may reasonably request and in form and substance
satisfactory to the Agents.
(h) Additional Conditions. There shall not have occurred: (a) any
downgrading in the rating accorded the Company's debt securities 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 public announcement that any such organization has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities, (c) a suspension or material limitation in
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 or the establishment of minimum prices 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 declared
by United States federal or New York State authorities, (e) any outbreak or
escalation in hostilities involving the United States or a declaration of a
national emergency or war by the United States, (f) any 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 the Agents, inadvisable or
impracticable to proceed with the solicitation of offers to purchase Notes or
the purchase of Notes from the Company as principal pursuant to the applicable
Purchase Agreement, as the case may be, 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 Agents, so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Notes or the purchase of Notes from the Company as principal pursuant
to the applicable Purchase Agreement, as the case may be.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only 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 satisfactory to counsel for the Agents.
SECTION 6. Additional Covenants of the Company.
The Company covenants and agrees that:
(a) Acceptance of Offer Affirms Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes shall be deemed to be
an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore given to the
Agents pursuant hereto are true and correct at the time of such acceptance,
and an undertaking that such representations and warranties will be true and
correct at the time of delivery to the purchaser or such purchaser's agent of
the Notes relating to such acceptance as though made at and as of each such
time (and such representations and warranties shall relate to the Registration
Statement and the Prospectus as amended or supplemented to each such time).
(b) Subsequent Delivery of Officers' Certificates. The Company agrees that
during each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes
or the principal amount of Notes remaining to be sold or similar changes),
each time the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of an officers' certificate under
this Section 6(b) as a condition to the purchase of Notes pursuant to such
Purchase Agreement or the Company files with the Commission any document
incorporated by reference into any Prospectus, the Company shall submit to the
Agents a certificate, (i) as of the date of such amendment, supplement, Time
of Delivery relating to such sale or filing or (ii) if such amendment,
supplement or filing was not filed during a Marketing Period, as of the first
day of the next succeeding Marketing Period, representing that the statements
contained in the certificate referred to in Section 5(f) hereof which was last
furnished to the Agents are true and correct at the time of such amendment,
supplement or filing, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the
Registration Statement and each Prospectus as amended and supplemented to such
time).
(c) Subsequent Delivery of Legal Opinions. The Company agrees that during
each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes
or the principal amount of Notes remaining to be sold or similar changes),
each time the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a legal opinion under this
Section 6(c) as a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Company files with the Commission any document incorporated
by reference into any Prospectus, the Company shall, (i) concurrently with
such amendment, supplement, Time of Delivery relating to such sale or filing
or (ii) if such amendment, supplement or filing was not filed during a
Marketing Period, on the first day of the next succeeding Marketing Period,
furnish the Agents and their counsel with the written opinions of counsel to
the Company specified in Section 5(e) hereof, each addressed to the Agents and
dated the date of delivery of such opinion, in form satisfactory to the
Agents, to the same effect as the opinions referred to in Section 5(e) hereof,
but modified, as necessary, to relate to the Registration Statement and each
Prospectus as amended or supplemented to the time of delivery of such opinion;
provided, however, that in lieu of such opinion, each such counsel may furnish
the Agents with a letter to the effect that the Agents may rely on such prior
opinion to the same extent as if it were dated the date of such letter
authorizing reliance (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and each Prospectus as amended
or supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. The Company agrees that
during each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional financial
information, each time the Company sells Notes to an Agent as principal and
the applicable Purchase Agreement specifies the delivery of a letter under
this Section 6(d) as a condition to the purchase of Notes pursuant to such
Purchase Agreement or the Company files with the Commission any document
incorporated by reference into any Prospectus which contains additional
financial information, the Company shall cause Arthur Andersen LLP (or other
independent accounts of the Company acceptable to the Agents) to furnish the
Agents, (i) concurrently with such amendment, supplement, Time of Delivery
relating to such sale or filing or (ii) if such amendment, supplement, or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, a letter, addressed jointly to the Company and
the Agents and dated the date of delivery of such letter, in form and
substance reasonably satisfactory to the Agents, to the same effect as the
letter referred to in Section 5(g) hereof but modified to relate to the
Registration Statement and each Prospectus, as amended and supplemented to the
date of such letter, with such changes as may be necessary to reflect changes
in the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement
or any Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, such accountants may limit the
scope of such letter to the unaudited financial statements included in such
amendment or supplement unless there is contained therein any other
accounting, financial or statistical information that, in the reasonable
judgment of the Agents, should be covered by such letter, in which event such
letter shall also cover such other information.
(e) Opinion on Settlement Date. On any settlement date for the sale of
Notes, the Company shall, if requested by the Agent that solicited or received
the offer to purchase any Notes being delivered on such settlement date,
furnish such Agent with written opinions of counsel to the Company set forth in
Section 5(e) hereof, each dated such settlement date, in form satisfactory to
such Agent, to the effect set forth in Section 5(e) hereof, but modified, as
necessary, to relate to the Prospectus relating to the Notes to be delivered
on such settlement date; provided, however, that in lieu of such opinion, such
counsel may furnish the Agents with a letter to the effect that the Agents may
rely on such prior opinion to the same extent as if it were dated such
settlement date (except that statements in such prior opinion shall be deemed
to relate to the Registration Statement and such Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance).
SECTION 7. Indemnification and Contribution
(a) The Company shall indemnify and hold harmless each Agent and each
person, if any, who controls any Agent 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
Notes), to which that Agent 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 Agent and each such controlling person promptly upon demand for
any legal and other expenses reasonably incurred as incurred by that Agent 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 Agent specifically for inclusion
therein; and provided further that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any Agent or any person
controlling an Agent on account of any loss, claim, damage, liability or
action arising from the sale of Notes to any person by that Agent if that Agent
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 Notes 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 Agent 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 Agent 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 Agent
or any controlling person of that Agent.
(b) Each Agent 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 Agent 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 Agent 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 Agents shall have the right to employ counsel to represent the Agents 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 Agents
against the Company under this Section 7 if, in the reasonable judgment of the
Agents, it is advisable for the Agents 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 Agents on the other hand from
the offering of the Notes, 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 Agents 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 any Agent 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 Notes (before deducting expenses) received by
the Company bear to the total commissions received by such Agent with respect
to such offering. 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 any Agent, 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 Agents 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 Agents 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 Agent shall be required to contribute any amount in excess of
the amount by which the total price at which the Notes sold through such Agent
and distributed to the public was offered to the public exceeds the amount of
any damages which such Agent 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.
SECTION 8. Status of each Agent
In soliciting offers to purchase Notes from the Company pursuant to this
Agreement (other than in respect of any Purchase Agreement), each Agent is
acting individually and not jointly and is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes from the Company has been solicited by such Agent and accepted
by the Company but such Agent shall have no liability to the Company in the
event any such purchase is not consummated for any reason. If the Company
shall default in its obligations to deliver Notes to a purchaser whose offer
it has accepted, the Company shall (i) hold the Agents harmless against any
loss, claim or damage arising from or as a result of such default by the
Company and (ii), in particular, pay to the Agents any commission to which
they would be entitled in connection with such sale.
SECTION 9. Representations, Warranties and Obligations to
Survive Delivery
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Agents contained in this Agreement, or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Agent or any person controlling such Agent or by
or on behalf of the Company, and shall survive each delivery of and payment
for any of the Notes.
SECTION 10. Termination
This Agreement may be terminated for any reason with respect to any party
hereto, at any time, by any party hereto upon the giving of one day's written
notice of such termination to the other parties hereto; provided, however, if
such terminating party is an Agent, such termination shall be effective only
with respect to such terminating party. If, at the time of a termination, an
offer to purchase any of the Notes has been accepted by the Company but the
time of delivery to the purchaser has not occurred, the provisions of this
Agreement shall remain in effect until such Notes are delivered. The
provisions of Sections 2(c), 3(b), 3(f), 3(g), 4, 7, 8 and 9 hereof shall
survive any termination of this Agreement.
SECTION 11. Sales of Notes Denominated in a Foreign Currency and
Indexed Notes
If at any time the Company and any of the Agents shall determine to issue
and sell Notes denominated in a currency or currency unit other than U.S.
Dollars, which other currency may include a composite currency, or with
respect to which an index is used to determine the amounts of payments of
principal and any premium or interest, the Company and any such Agent shall
execute and deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as Exhibit D.
Such amendment shall establish, as appropriate additions and modifications
that shall apply to the sales, whether offered on an agency or principal
basis, of the Notes covered thereby. The Agents are authorized to solicit
offers to purchase Notes with respect to which an index is used to determine
the amounts of payments of principal and any premium and interest, and the
Company shall agree to any sales of such Notes (whether offered on an agency
or principal basis), only in a minimum aggregate amount of $2,500,000.
SECTION 12. Notices
Except as otherwise provided herein, all notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Agents shall be directed to it as follows: Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285-1200, Attention: Medium - Term
Note Department, 12th Floor; Telephone No.: (212) 526-2040; Telecopy No.:
(212) 528-1718; BA Securities, Inc., 231 South LaSalle Street, 17th Floor,
Chicago, Illinois 60697, Attention: Jim DiMonte, Telephone No.:(312)828-3186;
Telecopy No.:(312) 974-0410; Chase Securities Inc., 270 Park Ave., New York,
New York 10017, Attention: Medium-Term Note Desk, Telephone No.:(212)
834-4421; Telecopy No.:(212) 834-6170; Deutsche Morgan Grenfell / C.J.
Lawrence Inc., 31 West 52nd Street, New York, New York 10019, Attention: Pam
Kendall - Legal Department, Telephone No.:(212) 469-8000; Telecopy No.:(212)
469-8172; Merrill Lynch, Pierce, Fenner & Smith Incorporated, World Financial
Canter, North Tower- 10th Floor, 250 Vesey Street, New York, New York 10281,
Attention: MTN Product Management, Telephone No.:(212) 449-2231; Telecopy
No.:(212) 449-2234; Morgan Stanley & Co. Incorporated, 1585 Broadway, 2nd
Floor, New York, New York 10036, Attention: Manager- Continuously Offered
Products, Telephone No.:(212) 761-2000; Telecopy No.:(212) 761-0780, with a
copy to Morgan Stanley & Co. Incorporated, 1585 Broadway, 34th Floor, New
York, New York 10036, Attention: Peter Cooper, Investment Banking Information
Center, Telephone No.:(212) 761-8385; Telecopy No.:(212) 761-0260; Smith
Barney Inc., 390 Greenwich Street, 4th Floor, New York, New York 10013,
Attention: MTN Product Management / Origination, Telephone No.: (212)
723-5123, Telecopy No.: (212) 723-8854; notices to the Company shall be
directed to it as follows: Illinois Central Railroad Company, 455 North
Cityfront Plaza Drive, Chicago, Illinois 60611, Attention: Douglas A. Koman,
Telephone No.: (312) 755-7935, Telecopy No.: (312) 755-7917.
SECTION 13. Binding Effect; Benefits
This Agreement shall be binding upon each Agent, the Company, and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Agent within the meaning of Section
15 of the Securities Act, and (b) the indemnity agreement of the Agents
contained in Section 7 hereof 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 Agreement is intended or shall be construed to give any person, other
than the person referred to in this Section, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION 14. Governing Law; Counterparts
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in counterparts
and the executed counterparts shall together constitute a single instrument.
SECTION 15. Paragraph Headings
The paragraph headings used in this Agreement are for convenience of
reference only, and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
Illinois Central Railroad Company
By: _____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
Lehman Brothers Inc.
By:_____________________________
Title:
BA Securities, Inc.
By:_____________________________
Title:
Chase Securities Inc.
By:_____________________________
Title:
Deutsche Morgan Grenfell / C.J. Lawrence Inc.
By:_____________________________
Title:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:_____________________________
Title:
Morgan Stanley & Co. Incorporated
By:_____________________________
Title:
Smith Barney Inc.
By:_____________________________
Title:
EXHIBIT A
Illinois Central Railroad Company
Medium-Term Notes, Series B
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the following
percentage of the aggregate U.S. dollar equivalent of the principal amount of
Notes:
Term Commission Rate
---- ---------------
9 months to less than 12 months 0.125%
12 months to less than 18 months 0.150%
18 months to less than 2 years 0.200%
2 years to less than 3 years 0.250%
3 years to less than 4 years 0.350%
4 years to less than 5 years 0.450%
5 years to less than 6 years 0.500%
6 years to less than 7 years 0.550%
7 years to less than 10 years 0.600%
10 years to less than 15 years 0.625%
15 years to less than 20 years 0.650%
20 years to 30 years 0.750%
EXHIBIT B
Illinois Central Railroad Company
Medium-Term Notes, Series B
Administrative Procedures
Medium-Term Notes, Series B, due from nine months to 30 years from
date of issue (the "Notes") may be offered on a continuing basis by Illinois
Central Railroad Company (the "Company"). Lehman Brothers Inc., BA
Securities, Inc., Chase Securities Inc., Deutsche Morgan Grenfell / C.J.
Lawrence Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated and Smith Barney Inc., as agents (each an "Agent"
and collectively, the "Agents"), have each agreed to use their reasonable best
efforts to solicit offers to purchase the Notes. The Notes are being sold
pursuant to a Distribution Agreement between the Company and the Agents dated
July 29, 1996 (as it may be supplemented or amended from time to time, the
"Distribution Agreement") to which these administrative procedures are
attached as an exhibit. The Notes will be issued pursuant to an Indenture,
dated as of July 25, 1996 (as it may be amended or supplemented from time to
time, the "Indenture"), between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"). The Notes will rank equally with all other unsecured
and unsubordinated indebtedness of the Company and will have been registered
with the Securities and Exchange Commission (the "Commission"). Unless
otherwise noted, terms not defined herein shall have the same meanings as in
the Prospectus Supplement relating to the Notes (the "Prospectus") and in the
Distribution Agreement. Special administrative procedures for Multi-Currency
Notes and for Global Securities for Book-Entry Notes follow these
administrative procedures.
Administrative responsibilities, document control and
record-keeping functions to be performed by the Company will be performed by
its Treasury Department. Administrative procedures for the offering are
explained below.
Registration
Notes will be issued only in fully registered form as either a
Book-Entry Note or a Certificated Note. Certificated Notes may be presented
for registration of transfer or exchange at the New York office of the
Trustee's designated agent.
Denominations
Unless otherwise indicated in the applicable Pricing Supplement,
Notes will be issued and payable in U.S. dollars in denominations of $1,000
and any integral multiple thereof.
Interest Payments
Interest on Fixed Rate Notes and Floating Rate Notes (each as
defined in the Prospectus Supplement) shall accrue and be payable on terms
specified in the Prospectus Supplement and the applicable Pricing Supplement.
Acceptance and Rejection of Offers
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it other than those
rejected by such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any offers in
whole or in part.
Settlement
The receipt of immediately available funds in U.S. Dollars by the
Company in The City of New York in payment for a Note (less the applicable
commission) and the authentication and issuance of such Note shall, with
respect to such Note, constitute "Settlement." All offers accepted by the
Company will be settled from one to three Business Days from the date of
acceptance by the Company pursuant to the timetable for Settlement set forth
below unless the Company and the purchaser agree to Settlement on a later
date; provided, however, that the Company will so notify the Trustee of any
such later date on or before the Business Day immediately prior to the
Settlement date.
Settlement Procedures for Certificated Notes
In the event of a purchase of Notes by an Agent, as principal,
appropriate Settlement details will be set forth in the applicable Purchase
Agreement to be entered into between such Agent and the Company pursuant to
the Distribution Agreement. In the Event of the sale of a Multi-Currency Note
or an Indexed Note, additional or different Settlement details may be set
forth in the applicable Amendment to be entered into between the Agent and the
Company pursuant to the Distribution Agreement.
Settlement procedures with regard to each Certificated Note sold
through each Agent shall be as follows:
A. Such Agent will advise the Company by telex or facsimile of
the following Settlement information:
1. Exact name in which the Note is to be registered
("Registered Owner").
2. Exact address of the Registered Owner and address for
payment of principal and interest, if any.
3. Taxpayer identification number of the Registered Owner
(if available).
4. Principal amount of the Note (and, if multiple Notes
are to be issued, denominations thereof).
5. Settlement date (Original Issue Date).
6. Stated Maturity.
7. Issue Price.
8. Trade Date.
9. Specified Currency and whether the option to elect
payments in a Specified Currency applies and if the
Specified Currency is not U.S. Dollars, the authorized
denominations.
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g., Commercial
Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier, if any
iv) Interest Reset Dates, Interest Reset
Period and Interest Determination Dates
v) Index Maturity
vi) maximum and minimum interest rates, if
any
vii) overdue rate, if any
(c) Indexed Notes
The applicable terms thereof
11. Interest Payment Date(s) and Regular Record Dates.
12. Optional Interest Reset Dates, if any, and Subsequent
Interest Periods, if any.
13. Extension Periods, if any, and Final Maturity Dates,
if any.
14. The date on or after which the Notes are redeemable at
the option of the Company or repurchasable by the
Company at the option of the holder, and additional
redemption or repurchase provisions, if any.
15. Amortization schedule, if any.
16. Wire transfer information, if applicable.
17. Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the Company
upon Settlement).
18. Whether such Certificated Note is issued at an
original issue discount ("OID"), and, if so, the total
amount of OID, the yield to maturity and the initial
accrual period of OID.
19. Other provisions, if appropriate.
B. The Company will confirm the above Settlement information to
the Trustee by telex or facsimile. If the Company rejects an offer, the
Company will promptly notify such Agent by telephone.
C. The Trustee will assign a Note number to the transaction and
will complete the first page of the preprinted 4-ply Note packet, the
form of which was previously approved by the Company, the Agents and the
Trustee.
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Agent. Such Agent
will acknowledge receipt of the Note by completing the yellow stub and
returning it to the Trustee.
E. Such Agent will cause to be wire transferred to a bank
account designated by the Company immediately available funds in U.S.
dollars in the amount of the principal amount of the Note, less the
applicable commission or discount, if any.
F. Such Agent will deliver the Note (with the attached white
confirmation) to the purchaser against payment in immediately available
funds in the amount of the principal amount of the Note. Such Agent
will deliver to the purchaser a copy of the most recent Prospectus
applicable to the Note with or prior to any written offer of Notes,
delivery of the Note and the confirmation and payment by the purchaser
for the Note.
G. Such Agent will obtain the acknowledgement of receipt for
the Note and Prospectus by the purchaser through the purchaser's
completion of the blue stub.
H. The Trustee will mail the pink stub to the Company's
Treasurer.
Settlement Procedures Timetable for Certificated Notes
For offers accepted by the Company, Settlement procedures "A"
through "H" set forth above shall be completed on or before the respective
times set forth below:
Settlement
Procedure Time (New York)
- ---------- ----
A 5:00 PM on date of order
B 3:00 PM on the Business Day prior to Settlement
date
C-D 12 noon on the Settlement date
E 2:15 PM on the Settlement date
F-G 3:00 PM on the Settlement date
H 5:00 PM on Business Day after the Settlement date
Failure
In the event that a purchaser of a Note shall either fail to
accept delivery of or make payment for such Note on the date fixed by the
Company for Settlement, such Agent will immediately notify the Trustee and the
Company's Treasurer by telephone, confirmed in writing, of such failure and
return the Note to the Trustee. Upon the Trustee's receipt of the Note from
the Agent, the Company will promptly return to the Agent an amount of
immediately available funds in U.S. dollars equal to any amount previously
transferred to the Company in respect of the Note pursuant to advances made by
the Agent. Such returns will be made on the Settlement date, if possible, and
in any event not later than 12 noon (New York City time) on the Business Day
following the Settlement date. The Company will reimburse such Agent on an
equitable basis for its loss of the use of the funds during the period when
the funds were credited to the account of the Company. Upon receipt of the
Note in respect of which the default occurred, the Trustee will mark the Note
"cancelled", make appropriate entries in its records and deliver the Note to
the Company with an appropriate debit advice. Such Agent will not be entitled
to any commission with respect to any Note which the purchaser does not accept
or make payment for.
Redemption
The Notes will be redeemable (if at all) prior to their Stated
Maturity on terms specified in the Prospectus Supplement and the applicable
Pricing Supplement.
Maturity
Notes will be paid at Maturity on terms specified in the
Prospectus Supplement and the applicable Pricing Supplement.
Procedures for Establishing the Terms of the Notes
The Company and the Agents will discuss from time to time the
rates to be borne by the Notes that may be sold as a result of the
solicitation of offers by the Agents. Once any Agent has recorded any
indication of interest in Notes upon certain terms and communicated with the
Company, if the Company accepts an offer to purchase Notes upon such terms,
the Company will prepare a Pricing Supplement, in the form previously approved
by the Agents, reflecting the terms of such Notes and, after approval from
such Agent, will arrange to electronically transmit for filing with the SEC
under the EDGAR system a copy of such Pricing Supplement (together with the
Prospectus, if amended or supplemented) and will supply an appropriate number
of copies of the Prospectus, as then amended or supplemented, together with
such Pricing Supplement, to the Agent who presented such offer. See "Delivery
of Prospectus."
If the Company decides to post rates and a decision has been
reached to change interest rates, the Company will promptly notify each Agent.
Each Agent will forthwith suspend solicitation of purchases. At that time,
the Agents will recommend and the Company will establish rates to be so
"posted". Following establishment of posted rates and prior to the filing
described in the following sentence, the Agents may only record indications of
interest in purchasing Notes at the posted rates. Once any Agent has recorded
any indication of interest in Notes at the posted rates and communicated with
the Company, if the Company plans to accept an offer at the posted rate, the
Company will prepare a Pricing Supplement reflecting such posted rates and,
after approval from the Agents, will arrange to electronically transmit for
filing with the SEC under the EDGAR system a copy of such Pricing Supplement
(together with the Prospectus if amended or supplemented) and will supply an
appropriate number of copies of the Prospectus, as then amended or
supplemented, to the Agent who presented such offer. See "Delivery of
Prospectus."
Suspension of Solicitation; Amendment or Supplement
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there
shall be any orders outstanding which have not been settled, the Company will
promptly advise the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as theretofore amended and/or
supplemented as in effect at the time of the suspension may be delivered in
connection with the settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements which may be made in
the event that the Company determines that such orders may not be settled or
that copies of such Prospectus may not be so delivered.
Delivery of Prospectus
A copy of the Prospectus as most recently amended or supplemented
on the date of delivery thereof, together with the applicable Pricing
Supplement, must be delivered to a purchaser prior to or simultaneously with
the earlier of the delivery of (i) the written confirmation of a sale sent to
a purchaser or his agent and (ii) any Note purchased by such purchaser. The
Company shall ensure that the applicable Agent receives copies of the
Prospectus and each amendment or supplement thereto (including the applicable
Pricing Supplement) in such quantities and within such time limits as will
enable such Agent to deliver such confirmation or Note to a purchaser as
contemplated by these procedures and in compliance with the preceding
sentence. Copies of Pricing Supplements should be delivered to:
If to Lehman Brothers Inc.:
By facsimile delivery to:
Lehman Brothers Inc.
c/o ADP
Prospectus Services
536 Broad Hollow Road
Melville, New York 11747
Attention: Mike Ward
Telephone: (516) 254-7106
Facsimile: (516) 249-7492]
with a copy by hand to:
Lehman Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285-0900
Attention: Brunnie Vazquez
Telephone: (212) 526-8400
If to BA Securities, Inc.:
231 South LaSalle Street- 17th Floor
Chicago, Illinois 60697
Attention: Sandy Vari
Telephone: (312) 828-4805
Facsimile: (312) 987-3705
If to Chase Securities Inc.:
270 Park Ave
New York, NY 10017
Attention: Medium-Term Note Desk
Telephone: (212) 834-4421
Facsimile: (212) 834-6170
If to Deutsche Morgan Grenfell / C.J. Lawrence Inc.:
31 West 52nd Street
New York, New York 10019
Attention: Pam Kendall- Legal Department
Telephone: (212) 469-8000
Facsimile: (212) 469-8172
If to Merrill Lynch, Pierce, Fenner & Smith Incorporated:
MTN Product Management
World Financial Center
North Tower-10th Floor
250 Vesey Street
New York, NY 10281-1310
Telephone: (212) 449-2231
Facsimile: (212) 449-2234
If to Morgan Stanley & Co. Incorporated:
1585 Broadway
2nd Floor
New York, New York 10036
Attention: Medium-Term Note Trading Desk, Carlos Cabrera
Telephone: (212) 761-2000
Facsimile: (212)761-8846
If to Smith Barney Inc.:
390 Greenwich Street, 4th Floor
New York, New York 10013
Attention: MTN Product Management/ Origination
Telephone: (212) 723-5123
Facsimile: (212) 723-8854
and by fax to:
Smith Barney Inc.
388 Greenwich Street, 34th Floor
New York, New York 10013
Attention: Legal Compliance
Telephone: (212) 816-7594
Facsimile: (212) 816-7912
If, since the date of acceptance of a purchaser's offer, the Prospectus shall
have been supplemented solely to reflect any sale of Notes on terms different
from those agreed to between the Company and such purchaser or a change in
posted rates not applicable to such purchaser, such purchaser shall not
receive the Prospectus as supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect the terms of the Notes being
purchased by such purchaser and otherwise as most recently amended or
supplemented on the date of delivery of the Prospectus. The Trustee will make
all such deliveries with respect to all Notes sold directly by the Company.
Authenticity of Signatures
The Company will cause the Trustee to furnish the Agents from time
to time with the specimen signatures of each of the Trustee's officers,
employees and agents who have been authorized by the Trustee to authenticate
Notes, but the Agents will have no obligation or liability to the Company or
the Trustee in respect of the authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on any Note.
Advertising Costs
The Company will determine with the Agents the amount and nature
of advertising that may be appropriate in offering the Notes. Advertising
expenses incurred with the consent of the
Company will be paid by the Company.
SPECIAL ADMINISTRATIVE PROCEDURES
FOR MULTI-CURRENCY NOTES
Unless otherwise set forth in an applicable Foreign Currency
Amendment, the following procedures and terms shall apply to Multi-Currency
Notes in addition to, and to the extent inconsistent therewith in replacement
of, the procedures and terms set forth above.
Denominations
The authorized denominations of any Multi-Currency Note will be
the amount of the Specified Currency for such Multi-Currency Note equivalent,
at the noon buying rate in the City of New York for cable transfers for such
Specified Currency (the "Market Exchange Rate") on the first Business Day in
the City of New York and the country issuing such currency (or in the case of
ECUs, Brussels) next preceding the date on which the Company accepts the offer
to purchase such Multi-Currency Note, to U.S.$100,000 (rounded down to an
integral multiple of 10,000 units of such Specified Currency) and any greater
amount that is an integral multiple of 10,000 units of such Specified Currency.
Currencies
Unless otherwise specified in the applicable Pricing Supplement,
payments of principal of (and premium, if any) and interest on all
Multi-Currency Notes will be made in the applicable Specified Currency,
provided, however, that payments of principal of (and premium, if any) and
interest on Multi-Currency Notes denominated in other than U.S dollars will
nevertheless be made in U.S. dollars (i) at the option of the Holders thereof
under the procedures described below and (ii) at the option of the Company in
the case of imposition of exchange controls or other circumstances beyond the
control of the Company as described below.
Payment of Principal and Interest
If so specified in the applicable Pricing Supplement, except as
provided in the next paragraph, payments of interest and principal (and
premium, if any) with respect to any Multi-Currency Note will be made in U.S.
dollars if the Holder of such Note on the relevant Regular Record Date or at
Maturity, as the case may be, has transmitted a written request for such
payment in U.S. dollars to the Trustee at its Corporate Trust Office in The
City of New York on or prior to such Regular Record Date or the date 15 days
prior to Maturity, as the case may be. Such request may be in writing (mailed
or hand delivered) or by cable, telex or other form or facsimile transmission.
Any such request made with respect to any Multi-Currency Note by a Holder will
remain in effect with respect to any further payments of interest and
principal (and premium, if any) with respect to such Multi-Currency Note
payable to such Holder, unless such request is revoked on or prior to the
relevant Regular Record Date or the date 15 days prior to Maturity, as the
case may be. Holders of Multi-Currency Notes denominated in other than U.S.
dollars whose Notes are registered in the name of a broker or nominee should
contact such broker or nominee to determine whether and how an election to
receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by a Holder of a
Multi-Currency Note who elects to receive payments in U.S. dollars will be
based on the highest bid quotation in The City of New York received by the
Currency Determination Agent (as defined below) as of noon New York City time
on the third Business Day next preceding the applicable payment date from
three recognized foreign exchange dealers (one of which may be the Currency
Determination Agent) for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all Holders of Multi-Currency Notes
electing to receive U.S. dollar payments and at which the applicable dealer
commits to execute a contract. If three such bid quotations are not available
on the third Business Day preceding the date of payment of principal (and
premium, if any) or interest with respect to any such Multi-Currency Note,
such payment will be made in the Specified Currency. All currency exchange
costs associated with any payment in U.S. dollars on any such Multi-Currency
Note will be borne by the Holder thereof by deductions from such payment.
Unless otherwise provided in the applicable Pricing Supplement, The Chase
Manhattan Bank will be the Currency Determination Agent (the "Currency
Determination Agent") with respect to the Multi-Currency Notes.
Payment Currency
If the principal of (and premium, if any) or interest on any
Multi-Currency Note is payable in any currency other than U.S. dollars and
such Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to Holders of the Multi-Currency
Notes by making such payment in U.S. dollars on the basis of the Market
Exchange Rate on the last date such Specified Currency was available (the
"Conversion Date"). Any payment made under such circumstances in U.S. dollars
where the required payment is in other than U.S. dollars will not constitute
an Event of Default under the Indenture.
If payment in respect of a Note is required to be made in any
currency unit (e.g., ECU) and such currency unit is unavailable due to the
imposition of exchange controls or other circumstances beyond the Company's
control, then all payments in respect of such Multi-Currency Note shall be
made in U.S. dollars until such currency unit is again available. The amount
of each payment in U.S. dollars shall be computed on the basis of the
equivalent of the currency unit in U.S. dollars, which shall be determined by
the Company or its agent on the following basis. The component currencies of
the currency unit for this purpose (the "Component Currencies") shall be the
currency amounts that were components of the currency unit as of the
Conversion Date for such currency unit. The equivalent of the currency unit
in U.S. dollars shall be calculated by aggregating the U.S. dollar equivalents
of the Component Currencies. The U.S. dollar equivalent of each of the
Component Currencies shall be determined by the Company or such agent on the
basis of the Market Exchange Rate for each such Component Currency that is
available as of the third Business Day prior to the date on which the relevant
payment is due and for each such Component Currency that is unavailable, if
any, as of the Conversion Date for such Component Currency.
If the official unit of any Component Currency is altered by way
of combination or subdivision, the number of units of that currency as a
Component Currency shall be divided or multiplied in the same proportion, if
two or more Component Currencies are consolidated into a single currency, the
amounts of those currencies as Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single currency. If any
Component Currency is divided into two or more currencies, the amount of the
original Component Currency shall be replaced by the amounts of such two or
more currencies, the sum of which shall be equal to the amount of the original
Component Currency.
Outstanding Multi-Currency Notes
For purposes of calculating the principal amount of any
Multi-Currency Note for any purpose under the Indenture, the principal amount
of such Multi-Currency Note at any time outstanding shall be deemed to be the
U.S. dollar equivalent at the Market Exchange Rate, determined as of the date
of the original issuance of such Multi-Currency Note, of the principal amount
of such Multi-Currency Note.
Details for Settlement of Multi-Currency Notes
In addition to the Settlement information specified in "Settlement
Procedures" above, the Agents shall communicate to the Company in the manner
set forth in "Settlement Procedures" the following information:
1. Specified Currency.
2. Denominations.
3. Wire transfer and overseas bank account information (if
holder has elected payment in a Specified Currency).
Additional Obligations of the Company and the Agents
(a) The Company or its designated agent shall submit such
reports or information as may be required from time to time by
applicable law, regulations and guidelines promulgated by Japanese
governmental and regulatory authorities in respect of the issue and
purchase of Notes denominated in Japanese Yen.
(b) The Company acknowledges that the terms of Notes denominated
in Japanese Yen that will be issued will be limited to those which have
been recognized by Japanese authorities.
(c) Each Agent represents to and agrees with the Company that it
will not offer or sell any Note directly or indirectly in Japan or to
residents of Japan or for the benefit of any Japanese person (which term
as used herein means any person resident in Japan, including any
corporation or other entity organized under the laws of Japan) or to
others for reoffering or resale directly or indirectly in Japan or to
any Japanese person during the period of 90 days from the issue date of
such Note (which Note is denominated in Japanese Yen) or 180 days from
the issue date of the Note (which Note is a Dual Currency Note, Reverse
Dual Currency Note or Optional Dual Currency Note) and that thereafter
it will not do so, except under circumstances which will result in
compliance with any applicable laws, regulations and ministerial
guidelines of Japan taken as a whole. Furthermore, in connection with
the issuance of Notes denominated in Japanese Yen, the Company and you
each agree to comply with all applicable laws, regulations and
guidelines as amended from time to time of the Japanese governmental and
regulatory authorities.
SPECIAL ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for the Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC
(a "Book-Entry Note") or a certificate delivered to the Holder thereof or a
Person designated by such Holder (a "Certificated Note"). An owner of a
Book-Entry Note will not be entitled to receive a certificate representing
such Note. In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC dated the date hereof
and a Medium-Term Note Certificate Agreement between the Trustee and DTC,
dated as of March 10, 1989, and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS"). Except as
otherwise set forth in this Exhibit B, Book-Entry Notes will be issued in
accordance with the administrative procedures set forth below.
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Fixed Rate
Book-Entry Notes, the Company will issue a
single Global Security in fully registered form
without coupons (a "Global Security")
representing all of such Notes that have the
same Original Issue Date, interest rate and
Stated Maturity. Similarly, on any settlement
date for one or more Floating Rate Book-Entry
Notes, the Company will issue a single Global
Security representing all of such Notes that
have the same Original Issue Date, Interest Rate
Basis, Initial Interest Rate, Interest Payment
Period, Interest Payment Dates, Index Maturity,
Spread or Spread Multiplier, if any, minimum
interest rate (if any), maximum interest rate
(if any), redemption provisions, if any, and
Stated Maturity. No Global Security will
represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note
or (iii) any Multi-Currency or Indexed Note.
Identification
Numbers: The Company will arrange, on or prior to
commencement of a program for the offering of
Book-Entry Notes, with the CUSIP Service Bureau
of Standard & Poor's Ratings Group (the "CUSIP
Service Bureau") for the reservation of a series
of CUSIP numbers (including tranche numbers),
consisting of approximately 900 CUSIP numbers
and relating to Global Securities representing
the Book-Entry Notes. The Trustee has or will
obtain from the CUSIP Service Bureau a written
list of such series of reserved CUSIP numbers
and will deliver to the Company and DTC such
written list of 900 CUSIP numbers of such
series. The Trustee will assign CUSIP numbers
to Global Securities as described below under
Settlement Procedure "B". DTC will notify the
CUSIP Service Bureau periodically of the CUSIP
numbers that the Trustee has assigned to Global
Securities. The Trustee will notify the Company
at any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global
Securities, and if it deems necessary, the
Company will reserve additional CUSIP numbers for
assignment to Global Securities representing
Book-Entry Notes. Upon obtaining such
additional CUSIP numbers the Trustee shall
deliver such additional CUSIP numbers to the
Company and DTC.
Registration: Each Global Security will be registered in the
name of Cede & Co., as nominee for DTC, on the
Security Register maintained under the
Indenture. The beneficial owner of a Book-Entry
Note (or one or more indirect participants in
DTC designated by such owner) will designate one
or more participants in DTC (with respect to
such Note, the "Participants") to act as agent
or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance
with instructions provided by such Participants,
a credit balance with respect to such Note in
the account of such Participants. The ownership
interest of such beneficial owner in such Note
will be recorded through the records of such
Participants or through the separate records of
such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one
or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees
of such Note.
Consolidation and
Exchange: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of
consolidation specifying (i) the CUSIP numbers
of two or more Outstanding Global Securities
that represent (A) Fixed Rate Book-Entry Notes
having the same Original Issue Date, interest
rate and Stated Maturity and with respect to
which interest has been paid to the same date or
(B) Floating Rate Book-Entry Notes having the
same Interest Rate Basis, Original Issue Date,
Initial Interest Rate, Interest Payment Dates,
Index Maturity, Spread or Spread Multiplier, if
any, minimum interest rate (if any), maximum
interest rate (if any), redemption provisions,
if any, and Stated Maturity and with respect to
which interest has been paid to the same date,
(ii) a date, occurring at least thirty days
after such written notice is delivered and at
least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which
such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a
new CUSIP number, obtained from the Company, to
be assigned to such replacement Global Security.
Upon receipt of such a notice, DTC will send to
its participants (including the Trustee) a
written reorganization notice to the effect that
such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the
new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be
valid. On the specified exchange date, the
Trustee will exchange such Global Securities for
a single Global Security bearing the new CUSIP
number, and the CUSIP numbers of the exchanged
Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not
immediately reassigned. Notwithstanding the
foregoing, if the Global Securities to be
exchanged exceed the maximum principal amount
specified by DTC, one Global Security will be
authenticated and issued to represent such
maximum principal amount of the exchanged Global
Securities and an additional Global Security
will be authenticated and issued to represent
any remaining principal amount of such Global
Securities (see "Denominations" below).
Denominations: Unless otherwise specified in the Prospectus
Supplement or the applicable Pricing Supplement,
Book-Entry Notes will be issued in principal
amounts of $1,000 or any integral multiple
thereof.
Interest: Interest on each Book-Entry Note will accrue and
be payable on terms specified in the Prospectus
Supplement and the applicable Pricing
Supplement. Standard & Poor's Ratings Group
will use the information received in the pending
deposit message described under Settlement
Procedure "C", below in order to include the
amount of any interest payable and certain other
information regarding the related Global
Security in the appropriate weekly bond report
published by Standard & Poor's Ratings Group.
Promptly after each Interest Determination Date
for Floating Rate Notes, the Company will notify
the Trustee, and the Trustee in turn will notify
Standard & Poor's Ratings Group, of the interest
rates determined on such Interest Determination
Date.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each
Regular Record Date, the Trustee will deliver to
the Company and DTC a written notice specifying
by CUSIP number the amount of interest to be
paid on each Global Security on the following
Interest Payment Date (other than an Interest
Payment Date coinciding with Maturity) and the
total of such amounts. DTC will confirm the
amount payable on each Global Security on such
Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's
Ratings Group. The Company will pay to the
Trustee, as paying agent, the total amount of
interest due on such Interest Payment Date (other
than at Maturity), and the Trustee will pay such
amount to DTC at the times and in the manner set
forth below under "Manner of Payment".
Payments at Maturity. On or about the first
Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of
principal and interest to be paid on each Global
Security maturing in the following month. The
Company, the Trustee and DTC will confirm the
amounts of such principal and interest payments
with respect to each such Global Security on or
about the fifth Business Day preceding the
Maturity of such Global Security. The Company
will pay to the Trustee, as the paying agent,
the principal amount of such Global Security,
together with interest due at such Maturity.
The Trustee will pay such amount to DTC at the
times and in the manner set forth below under
"Manner of Payment".
Manner of Payment. The total amount of any
principal and interest due on Global Securities
on any Interest Payment Date or at Maturity
shall be paid by the Company to the Trustee in
funds available for use by the Trustee as of
9:30 A.M. (New York City time) on such date.
The Company will make such payment on such
Global Securities by instructing the Trustee to
withdraw funds from an account maintained by the
Company at the Trustee. The Company will
confirm such instructions in writing to the
Trustee. For maturity, redemption or any other
principal payments: prior to 10 A.M. (New York
City time) on such date or as soon as possible
thereafter, the Trustee will make such payments
to DTC in same day funds in accordance with
DTC's Same Day Funds Settlement Paying Agent
Operating Procedures. For interest payments:
the Trustee will make such payments to DTC in
accordance with existing arrangements between
DTC and the Trustee. DTC will allocate such
payments to its participants in accordance with
its existing operating procedures. Neither the
Company (either as issuer or as Paying Agent)
nor the Trustee shall have any direct
responsibility or liability for the payment by
DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry Note
will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding payments
and materials directly to the beneficial owner
of such Note.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note which will be registered in the
name of the nominee of DTC (unless otherwise
indicated in the applicable Pricing Supplement,
"Cede & Co.") sold by the Company through an
Agent, as agent, shall be as follows:
A. Such Agent will advise the Company by telex
or facsimile of the following settlement
information:
1. Principal amount of the Note (and, if
multiple Notes are to be issued,
denominations thereof).
2. Settlement date (Original Issue Date).
3. Stated Maturity.
4. Issue Price.
5. Trade Date.
6. Specified Currency and whether the
option to elect payments in a Specified
Currency applies and if the Specified
Currency is not U.S. Dollars, the
authorized denominations.
7. Interest rate:
(a) Fixed Rate Notes:
i)interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g.,
Commercial Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread
Multiplier, if any
iv) Interest Reset Dates,
Interest Reset Period and
Interest Determination Dates
v) Index Maturity
vi) maximum and minimum
interest rates, if any
vii) overdue rate, if any
(c) Currency Indexed Notes
The applicable terms thereof
8. Interest Payment Date(s) and Regular
Record Dates.
9. Optional Interest Reset Dates, if any,
and Subsequent Interest Periods, if any.
10. Extension Periods, if any, and Final
Maturity Dates, if any.
11. The date on or after which the Notes are
redeemable at the option of the Company
or repurchasable by the Company at the
option of the holder, and additional
redemption or repurchase provisions, if
any.
12. Amortization schedule, if any.
13. Wire transfer information, if
applicable.
14. Agents Commission (to be paid in the
form of a discount from the proceeds
remitted to the Company upon
Settlement).
15. Whether such Book-Entry Note is issued
at an original issue discount ("OID"),
and, if so, the total amount of OID,
the yield to maturity and the initial
accrual period of OID.
B. The Company will advise the Trustee by
electronic transmission of the information
set forth in Settlement Procedure "All above
and the name of such Agent. Each such
communication by the Company shall
constitute a representation and warranty by
the Company to the Trustee and each Agent
that (i) such Note is then, and at the time
of issuance and sale thereof will be, duly
authorized for issuance and sale by the
Company, (ii) such Note, and the Global
Security representing such Note, will
conform with the terms of the Indenture and
(iii) upon authentication and delivery of
such Global Security, the aggregate initial
offering price of all Notes issued under the
Indenture will not exceed the maximum
aggregate amount then authorized (except for
Book-Entry Notes represented by Global
Securities authenticated and delivered in
exchange for or in lieu of Global Securities
pursuant to the Indenture and except for
Certificated Notes authenticated and
delivered upon registration of transfer of,
in exchange for, or in lieu of Certificated
Notes pursuant to any such Section).
C. The Trustee will assign a CUSIP number to
the Global Security representing such Note
and enter a pending deposit message through
DTC's Participant Terminal System, providing
the following settlement information to DTC,
such Agent and Standard & Poor's Ratings
Group:
1. The applicable information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related "DTC Regular
Record Date" (which term means the
Regular Record Date except in the case
of floating rate notes which reset
daily or weekly in which case it means
the date 5 calendar days immediately
preceding the Interest Payment Date)
and amount of interest payable on such
Interest Payment Date per $1,000 of
principal amount of such Note.
4. Frequency of interest payments (monthly,
semiannually, quarterly, etc.).
5. CUSIP number of the Global Security
representing such Note.
6. Whether such Global Security will
represent any other Book-Entry Note (to
the extent known at such time).
D. Such Agent will deliver to the purchaser a
copy of the most recent Prospectus
applicable to the Note with or prior to any
written offer of Notes and the confirmation
and payment by the purchaser of the Note.
Such Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
E. The Trustee, as Trustee, will complete and
authenticate the note certificate evidencing
the Global Security representing such
Book-Entry Note.
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Trustee's participant account and credit
such Note to such Agent's participant account
and (ii) debit such Agent's settlement
account and credit the Trustee's settlement
account for an amount equal to the price of
such Note less such Agent's commission. The
entry of such a deliver order shall
constitute a representation and warranty by
the Trustee to DTC that (i) the Global
Security representing such Book-Entry Note
has been issued and authenticated and (ii)
the Trustee is holding such Global Security
pursuant to the Medium-Term Note Certificate
Agreement between the Trustee and DTC (the
"Certificate Agreement").
H. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
such Agent's participant account and credit
such Note to the participant accounts of the
Participants with respect to such Note and
(ii) to debit the settlement accounts of
such Participants and credit the settlement
account of such Agent for an amount equal to
the price of such Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the Settlement date.
J. The Trustee will credit to an account of the
Company maintained at the Trustee funds
available for immediate use in the amount
transferred to the Trustee in accordance
with Settlement Procedure "G".
Settlement Procedures
Timetable: For orders of Book-Entry Notes solicited by an
Agent, as agent, and accepted by the Company for
settlement, Settlement Procedures "A" through
"J" set forth above shall be completed as soon
as possible but not later than the respective
times (New York City time) set forth below:
Settlement.
Procedure Time
A 11:00 A.M. on the sale date
B 12 Noon on the sale date
C 2:00 P.M. on the sale date
D Day after sale date
E 3:00 P.M. on day before
Settlement date
F 10:00 A.M. on Settlement date
G-H 2:00 P.M. on Settlement date
I 4:45 P.M. on Settlement date
J 5:00 P.M. on Settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be completed
as soon as practicable but no later than 11:00
A.M., 12 Noon and 2:00 P.M., as the case may be,
on the first Business Day after the sale date.
If the initial interest rate for a Floating Rate
Book-Entry Note has not been determined at the
time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been
determined but no later than 12:00 Noon and 2:00
P.M., respectively, on the second Business Day
before the Settlement date. Settlement
Procedure "J" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in
the SDFS operating procedures in effect on the
Settlement date.
If Settlement of a Book-Entry Note is
rescheduled or canceled, the Trustee will
deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such
effect by no later than 2:00 P.M. on the
Business Day immediately preceding the scheduled
Settlement date.
Failure to Settle: If the Trustee has not entered an SDFS deliver
order with respect to a Book-Entry Note pursuant
to Settlement Procedure "G", then, upon written
request (which may be effected by facsimile
transmission) of the Company, the Trustee shall
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable but no
later than 2:00 P.M. on any Business Day, a
withdrawal message instructing DTC to debit such
Note to the Trustee's participant account. DTC
will process the withdrawal message, provided
that the Trustee's participant account contains
a principal amount of the Global Security
representing such Note that is at least equal to
the principal amount to be debited. If a
withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global
Security, the Trustee will mark such Global
Security "canceled", make appropriate entries in
the Trustee's records and send such canceled
Global Security to the Company. The CUSIP
number assigned to such Global Security shall,
in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If a withdrawal message is
processed with respect to one or more, but not
all, of the Book-Entry Notes represented by a
Global Security, the Trustee will exchange such
Global Security for two Global Securities, one
of which shall represent such Book-Entry Note or
Notes and shall be canceled immediately after
issuance and the other of which shall represent
the other Book-Entry Notes previously
represented by the surrendered Global Security
and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a Person, including an indirect participant
in DTC, acting on behalf of such purchaser), such
Participants and, in turn, the Agent for such
Note may enter SDFS deliver orders through DTC's
Participant Terminal System debiting such
Book-Entry Note free to such Agent's participant
account and crediting such Book-Entry Note free
to the participant account of the Trustee and
shall notify the Trustee and the Company
thereof. Thereafter, the Trustee (i) will
immediately notify the Company, once the Trustee
has confirmed that such Book-Entry Note has been
credited to its participant account, and the
Company shall immediately transfer by Fed wire
(immediately available funds) to such Agent an
amount equal to the amount with respect to such
Book-Entry Note which was previously sent by
wire transfer to the account of the Company in
accordance with Settlement Procedure "J", and
(ii) the Trustee will deliver the withdrawal
message and take the related actions described
in the preceding paragraph. Such debits and
credits will be made on the Settlement date, if
possible, and in any event not later than 5:00
P.M. on the following Business Day. If such
failure shall have occurred for any reason other
than a default by the Agent in the performance
of its obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for
the loss of the use of the funds during the
period when they were credited to the account of
the Company.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note, DTC
may take any actions in accordance with its SDFS
operating procedures then in effect. In the
event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes to
have been represented by a Global Security, the
Trustee will provide, in accordance with
Settlement Procedure "E", for the authentication
and issuance of a Global Security representing
the other Book-Entry Notes to have been
represented by such Global Security and will
make appropriate entries in its records.
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company, DTC,
the Agents, or the purchaser, it being
understood by all parties that payments made by
the Trustee to the Company, DTC, the Agents, or
the purchaser shall be made only to such extent
that funds are provided to the Trustee for such
purpose. Similarly, nothing herein shall alter
any duty, or limit or diminish any right or
immunity, of the Trustee under the Indenture.
EXHIBIT C
PURCHASE AGREEMENT
Illinois Central Railroad Company _______________, 19__
455 North Cityfront Plaza Drive
Chicago, Illinois 60611
Attention: Treasurer
The undersigned agrees to purchase the following principal amount
of the Notes described in the Distribution Agreement dated July 29, 1996 (as
it may be supplemented or amended from time to time, the "Distribution
Agreement"):
Principal Amount [$] ______________________________
Specified Currency: ______________________________
Indexed Currency: ______________________________
Interest Rate: ________%
Discount: ________% of Principal Amount
Aggregate Price to be
paid to Company
(in immediately
available funds): [$] ______________________________
Settlement Date: ______________________________
Other Terms: ______________________________
In the case of Notes issued in a foreign currency or currency
unit, unless otherwise specified below, settlement and payments of principal
and interest will be in U.S. dollars based on the highest bid quotation in The
City of New York received by the Exchange Rate Agent at approximately 11:00
A.M., New York City time, on the second Business Day preceding the applicable
payment date from three recognized foreign exchange dealers selected by the
Exchange Rate Agent and approved by the Company (one of which may be the
Exchange Rate Agent) for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all holders of Notes denominated
in such Specified Currency electing to receive U.S. dollar payments and at
which the applicable dealer commits to execute a contract. If such bid
quotations are not available, payments will be made in the Specified Currency.
Our obligation to purchase Notes hereunder is subject to the
continued accuracy of your representations and warranties contained in the
Distribution Agreement and to your performance and observance of all
applicable covenants and agreements contained therein, including, without
limitation, your obligations pursuant to Section 6 and Section 7 thereof. Our
obligation hereunder is subject to the conditions set forth in Section 5 of
the Distribution Agreement and to the further condition that we shall receive
(a) the opinions required to be delivered pursuant to Section 5(e) of the
Distribution Agreement, (b) the certificate required to be delivered pursuant
to Section 5(f) of the Distribution Agreement, (c) the letter referred to in
Section 5(g), in each case dated as of the above Settlement Date and (d) and
such further information, certificates and documents as the Agents or counsel
to the Agents may reasonably request.
In further consideration of our agreement hereunder, you agree
that between the date hereof and the above Settlement date, you will not offer
or sell, or enter into any agreement to sell, any debt securities of the
Company, other than borrowings under your revolving credit agreements and
lines of credit, the private placement of securities and issuances of your
commercial paper or other issuances of Notes.
We may terminate this Agreement, in our 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 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 is
has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities, (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 the Agents, inadvisable or impracticable to proceed with the payment for
and delivery of the Notes, 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 Agents, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of
the Notes on the terms and in the manner contemplated in the Prospectus.
This Agreement shall be governed by and construed in accordance
with the laws of New York.
[Insert name of Agent(s]]
By _________________________
[Title]
Accepted: 19__
Illinois Central Railroad Company
By _________________________
[Title]
EXHIBIT D
[FOREIGN CURRENCY] [INDEXED NOTE]
AMENDMENT NO. ____________ TO DISTRIBUTION AGREEMENT,
DATED JULY 29, 1996, AS AMENDED
[Insert Title of Foreign Currency and, in the case of Indexed Notes, the
Indexed Basis]
The undersigned hereby agree that for the purposes of the issue
and sale of Notes denominated in [title of currency or currency unit] (the
"Specified Currency") (and indexed to [title of index basis] (the "Index
Basis")] pursuant to the Distribution Agreement, dated July 29, 1996 as it may
be amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under
the Distribution Agreement of all Notes denominated in the Specified Currency
[and indexed to the Index Basis], whether offered on an agency or principal
basis, but shall be of no effect with respect to Notes denominated in any
currency or currency unit other than the Specified Currency.
Except as otherwise expressly provided herein, all terms used
herein which are defined in the Distribution Agreement shall have the same
meanings as in the Distribution Agreement. The term[s] Agent [or Agents], as
used in the Distribution Agreement, shall be deemed to refer [only] to the
undersigned Agent[s] for purposes of this Amendment.
[Insert appropriate additions and modifications to the
Distribution Agreement, for example, to opinions of counsel, conditions to
obligations and settlement procedures, etc.]
_______________, 19__
Illinois Central Railroad Company
By_________________________
Name:
Title:
[Name(s) of Agent(s) participating in the offering of Notes in the Specified
Currency]
By_________________________
Name:
Title:
EXHIBIT 4.3
CUSIP NO.____ ILLINOIS CENTRAL RAILROAD COMPANY
REGISTERED NO. FXB MEDIUM-TERM NOTE, SERIES B PRINCIPAL AMOUNT: $
(Fixed Rate)
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a global Note and the following legend is
applicable: Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of CEDE &
CO., or such other name as requested by an authorized representative of The
Depository Trust Company, and any payment is made to CEDE & CO. or such
other entity, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, CEDE & CO., has an interest herein.
The following summary of terms is subject to the information set forth
on the reverse hereof:
<TABLE>
<CAPTION
<S> <C>
OPTIONAL REDEMPTION: [ ] YES [ ] NO
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: REDEMPTION PRICE: Initially __% of Principal Amount and declining
by __% of the Principal Amount on each anniversary of the Initial
SPECIFIED CURRENCY: Redemption Date until the Redemption Price is 100% of the Principal
Amount.
AUTHORIZED DENOMINATIONS (If other than $1,000
and any integral multiple thereof):
OPTION TO ELECT PAYMENTS IN U.S. DOLLARS: [ ] YES [ ] NO
FORM: [ ] BOOK ENTRY
[ ] CERTIFICATED OPTION TO ELECT REPAYMENT: [ ] YES [ ] NO
INTEREST RATE: OPTIONAL REPAYMENT DATES:
INTEREST PAYMENT DATE[S]: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATE[S]: OPTIONAL INTEREST RESET: [ ] YES [ ] NO
OVERDUE RATE: OPTIONAL INTEREST RESET DATES:
U.S. DEPOSITARY: OPTIONAL EXTENSIONS OF MATURITY [ ] YES [ ] NO
CURRENCY DETERMINATION AGENT: EXTENSION PERIOD:
AMORTIZING NOTE: [ ] YES [ ] NO NUMBER OF EXTENSION PERIODS:
FINAL MATURITY DATE:
OTHER PROVISIONS: ANNEX ATTACHED [ ] YES [ ] NO
(and incorporated by
reference herein)
</TABLE>
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a percentage of
aggregate principal amount):
[ ] YES [ ] NO
YIELD TO MATURITY:
</TABLE>
In addition, if this Note is subject to the rules of Treasury
Regulations Section 1.1275-4, then solely for tax purposes, either (A) or
(B) below shall also be completed:
(A) COMPARABLE YIELD:
PROJECTED PAYMENT SCHEDULE:
(B) NAME or TITLE of issuer representative
to contact for information required to
comply with treasury Regulatiopns Section 1.1275-4:
ADDRESS or TELEPHONE NUMBER of such representative:
ILLINOIS CENTRAL RAILROAD COMPANY, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company" which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to CEDE & Co., or
registered assigns, the principal sum set forth above on the Stated Maturity
shown above, and to pay interest thereon from and including the Original Issue
Date shown above or from and including the most recent Interest Payment Date
(as hereinafter defined) to which interest has been paid or duly provided for,
as the case may be.
Interest will be paid on the Interest Payment Date or Dates shown above
("Interest Payment Dates"), commencing with the first such Interest Payment
Date next succeeding the Original Issue Date shown above (except as provided
below), at the rate per annum specified above, until the principal hereof is
paid or made available for payment and on the Stated Maturity, and, if
specified above, interest shall accrue on any overdue principal and on any
overdue installment of interest (to the extent that the payment of such
interest shall be legally enforceable) at the Overdue Rate per annum set forth
above. The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the Regular Record Date set forth above
next preceding such Interest Payment Date. The first payment of interest on
any Note originally issued between a Regular Record Date and an Interest
Payment Date will be made on the Interest Payment Date following the next
succeeding Regular Record Date to the registered owner on such next succeeding
Regular Record Date. Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment
of such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not less than 10 calendar days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payments of interest to be paid in U.S. dollars (other than interest,
and if this is an Amortizing Note, principal (if this is not a global Note)
payable at the Stated Maturity) will be made by mailing a check to the Holder
at the address of the Holder appearing in the Security Register as of the
applicable Regular Record Date. Notwithstanding the foregoing, at the option
of the Company, all payments of interest and, if this is an Amortizing Note,
principal on this Note may be made by wire transfer of immediately available
funds to an account maintained by such Holder with a bank located in the
United States as designated by the Holder not less than 15 calendar days prior
to the Interest Payment Date. If a Holder holds U.S. $10,000,000 or more in
aggregate principal amount of Notes of like tenor and terms (including the
same Interest Payment Dates) (or is the Holder of the equivalent thereof in a
Specified Currency other than U.S. dollars), such Holder shall be entitled to
receive payments of interest (other than at the Stated Maturity or upon
earlier redemption or repayment) in U.S. dollars by wire transfer of
immediately available funds, but only if appropriate payment instructions have
been received in writing by the Trustee not less than 15 calendar days prior
to the applicable Interest Payment Date.
Simultaneously with the election by the Holder to receive payments in a
Specified Currency other than U.S. dollars (by written request to the Trustee,
as provided below), the Holder shall provide appropriate payment instructions
to the Trustee, and all such payments will be made in immediately available
funds to a bank account maintained by the Holder in the country of the
Specified Currency (or, with respect to ECUs, Brussels). If such a payment
with respect to this Note cannot be made by wire transfer because the
required designation has not been received by the Trustee on or before the
requisite date or for any other reason, a notice will be mailed to the Holder
at its registered address requesting a designation pursuant to which such wire
transfer can be made and, upon the Trustee's receipt of such a designation,
such payment will be made within 15 days of such receipt.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment
or governmental charge imposed upon the Holder of this Note. In the event
that payment is so made in accordance with the instructions of the Holder,
such wire transfer shall be deemed to constitute full and complete payment of
such interest and principal on this Note. If this is not a global Note,
payment of the principal, premium, if any, and interest payable at Maturity in
respect of this Note will be paid in immediately available funds upon
surrender of this Note accompanied by wire instructions at the principal
office of the Trustee, provided that this Note is presented in time for the
Trustee to make such payments in such funds in accordance with its normal
procedures.
If the Holder of this Note (as indicated above) is the U.S. Depositary
or a nominee of the U.S. Depositary, this Note is a global Note and the
following legend is applicable except as specified on the reverse hereof:
UNLESS AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE REGISTERED
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE U.S.
DEPOSITARY TO THE NOMINEE OF THE U.S. DEPOSITARY OR BY A NOMINEE OF THE U.S.
DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE U.S. DEPOSITARY OR
BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S. DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR U.S. DEPOSITARY.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ILLINOIS CENTRAL RAILROAD COMPANY
By: ______________________________
Name:_____________________________
Title:____________________________
[CORPORATE SEAL]
By: ______________________________
Name:_____________________________
Title:____________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Security is one of the Securities issued
pursuant to the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By:___________________________________
Authorized Officer
[Reverse of Note]
ILLINOIS CENTRAL RAILROAD COMPANY
MEDIUM-TERM NOTE, SERIES B
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of July 25, 1996 (herein
called the "Indenture"), between the Company and The Chase Manhattan Bank, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Note is one of the Securities of the series designated on the face hereof.
The Notes may bear different dates, mature at different times, bear interest
at different rates, be subject to different redemption provisions and may
otherwise vary, all as provided in the Indenture.
SECTION 2. Payments. Interest on this Note will be payable on the
Interest Payment Date or Interest Payment Dates as specified on the face
hereof and, in either case, at Stated Maturity or earlier redemption or
repayment.
Interest payments on each Interest Payment Date for this Note will
include accrued interest from and including the Original Issue Date or from
and including the last date in respect of which interest has been paid, as the
case may be, to but excluding such Interest Payment Date or date of Maturity,
as the case may be. Interest on this Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect of this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U.S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as
the case may be. Such request may be delivered by mail, by hand or by cable,
telex or any other form of facsimile transmission. Any such request made with
respect to this Note by a Holder will remain in effect with respect to any
further payments of interest and principal (and premium, if any) with respect
to this Note payable to such Holder, unless such request is revoked by written
notice received by the Paying Agent on or prior to the relevant Regular Record
Date or the date 15 days prior to Maturity, as the case may be (but no such
revocation may be made with respect to payments made on this Note if an Event
of Default has occurred with respect hereto or upon the giving of a notice of
redemption). A Holder whose Note is registered in the name of a broker or
nominee should contact such broker or nominee to determine whether and how an
election to receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by the Holder of this Note who
elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable payment date (the "Conversion Date") from
the bank composite or multicontributor pages of the Quoting Source for three
(or two if three are not available) major banks in The City of New York. The
first three (or two) such banks selected by the Currency Determination Agent
which are offering quotes on the Quoting Source will be used. If fewer than
two such bid quotations are available at 11:00 A.M., New York City time, on
the second Business Day next preceding the applicable payment date, such
payment will be based on the Market Exchange Rate as of the second Business
Day next preceding the applicable payment date. If the Market Exchange Rate
for such date is not then available, such payment will be made in the Specified
Currency. As used herein, the "Quoting Source" means Reuters Monitor Foreign
Exchange Service, or if the Currency Determination Agent determines that such
service is not available, Telerate Monitor Foreign Exchange Service, or if the
Currency Determination Agent determines that neither service is available,
such comparable display or other comparable manner of obtaining quotations as
shall be agreed between the Company and the Currency Determination Agent. All
currency exchange costs associated with any payment in U.S. dollars on this
Note will be borne by the Holder by deductions from such payment. Any
currency determination agent (the "Currency Determination Agent") with respect
to this Note is specified on the face hereof.
If payment in respect of this Note is required to be made in any
currency unit (e.g. ECUs) and such currency unit is unavailable, in the good
faith judgment of the Company, due to the imposition of exchange controls or
other circumstances beyond the Company's control, then all payments in respect
of this Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on
the basis of the equivalent of the currency unit in U.S. dollars, which shall
be determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the
currency unit as of the Conversion Date. The equivalent of the currency unit
in U.S. dollars shall be calculated by aggregating the U.S. dollar equivalents
of the Component Currencies. The U.S. dollar equivalent of each of the
Component Currencies shall be determined by the Currency Determination Agent
on the basis of the Market Exchange Rate for each such Component Currency as
of the Conversion Date. "Market Exchange Rate" means the noon buying rate in
The City of New York for cable transfers of such Specified Currency as
certified for customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a
Component Currency shall be divided or multiplied in the same proportion. If
two or more Component Currencies are consolidated into a single currency, the
amounts of those currencies as Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single currency. If any
Component Currency is divided into two or more currencies, the amount of the
original Component Currency shall be replaced by the amounts of such two or
more currencies, the sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Currency Determination
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this Note.
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward)
and all currency or currency unit or dollar amounts used in or resulting from
any such calculation in respect of the Notes will be rounded to the nearest
one-hundredth of a unit (with five one-thousandths being rounded upward) or
nearest cent (with one-half cent being rounded upward), as the case may be.
SECTION 3. Redemption. If so specified on the face hereof, the Company
may at its option redeem this Note in whole or from time to time in part on or
after the date designated as the Initial Redemption Date on the face hereof at
the redemption price specified on the face hereof, together with accrued and
unpaid interest to the date of redemption, but interest installments that are
due on or prior to the date of redemption will be payable to the Holder of
this Note of record at the close of business on the relevant Regular Record
Date referred to on the face hereof, all as provided in the Indenture. The
Company may exercise such option by causing the Trustee to mail a notice of
such redemption at least 30 but not more than 60 calendar days prior to the
date of redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note
or Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note (if it is repayable
at the option of the Holder) to be repaid prior to Stated Maturity, the Paying
Agent must receive at least 30 but not more than 45 calendar days prior to an
Optional Repayment Date (i) this Note with the form below entitled "Option to
Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of this Note, the
principal amount of this Note, the principal amount of the Note to be repaid,
the certificate number or a description of the tenor and terms of this Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note with the form below entitled "Option to Elect
Repayment" duly completed will be received by the Paying Agent not later than
five Business Days after the date of such telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid). If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Trustee by such
fifth Business Day. Exercise of the repayment option by the Holder of this
Note shall be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke any such tender for repayment by written notice to the
Trustee received prior to the close of business on the tenth calendar day
prior to the repayment date. The repayment option may be exercised by the
Holder of this Note for less than the entire principal amount of this Note
provided that the principal amount of this Note remaining outstanding after
such repayment is an authorized denomination. Upon such partial repayment,
this Note shall be cancelled and a new Note or Notes for the remaining
principal amount hereof shall be issued in the name of the Holder of this Note.
SECTION 5. Optional Interest Reset. If so specified on the face
hereof, the interest rate on this Note may be reset by the Company on the date
or dates specified on the face hereof (each an "Optional Interest Reset
Date"). The Company may exercise such option by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to an Optional
Interest Reset Date. If the Company so notifies the Trustee of such exercise,
the Trustee will send, not later than 40 calendar days prior to each Optional
Interest Reset Date, by telegram, telex, facsimile transmission, hand delivery
or letter (first class, postage prepaid) to the Holder of this Note a notice
(the "Reset Notice") indicating (i) that the Company has elected to reset the
interest rate, (ii) such new interest rate and (iii) the provisions, if any,
for redemption during the period from such Optional Interest Reset Date to the
next Optional Interest Reset Date or, if there is no such next Optional
Interest Reset Date, to the Stated Maturity of this Note (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such
redemption may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to
an Optional Interest Reset Date, the Company may, at its option, revoke the
interest rate provided for in the Reset Notice and establish a higher interest
rate for the Subsequent Interest Period commencing on such Optional Interest
Reset Date by causing the Trustee to send by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) notice of
such higher interest rate to the Holder of this Note. Such notice shall be
irrevocable. All Notes with respect to which the interest rate is reset on an
Optional Interest Reset Date will bear such higher interest rate, whether or
not tendered for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to reset
the interest rate of this Note, the Holder of this Note will have the option
to elect repayment of this Note by the Company on such Optional Interest Reset
Date at a price equal to the principal amount hereof plus interest accrued and
unpaid thereon to such Optional Interest Reset Date. In order to obtain
repayment on an Optional Interest Reset Date, the Holder must follow the
procedures set forth under Section 4 for optional repayment except that the
period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 calendar days prior to such Optional Interest Reset Date. If
the Holder has tendered this Note for repayment following receipt of a Reset
Notice, the Holder may revoke such tender for repayment by written notice to
the Trustee received prior to 5:00 P.M., New York City time, on the tenth
calendar day prior to such Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face
hereof, the Stated Maturity of this Note may be extended at the option of the
Company for the period or periods of from one to five whole years specified on
the face hereof (each an "Extension Period") up to but not beyond the date
(the "Final Maturity Date") set forth on the face hereof. The Company may
exercise such option with respect to this Note by notifying the Trustee of
such exercise at least 45 but not more than 60 calendar days prior to the
Stated Maturity of this Note in effect prior to the exercise of such option
(the "Original Stated Maturity Date"). If the Company so notifies the Trustee
of such exercise, the Trustee will send, not later than 40 calendar days prior
to the Original Stated Maturity Date, by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) to the
Holder of this Note, a notice (the "Extension Notice") indicating (i) that the
Company has elected to extend the Stated Maturity of this Note, (ii) the new
Stated Maturity, (iii) the interest rate applicable to the Extension Period
and (iv) the provisions, if any, for redemption during such Extension Period,
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Extension
Period. Upon the Trustee's sending of the Extension Notice, the Stated
Maturity of this Note shall be extended automatically and, except as modified
by the Extension Notice and as described in the next two paragraphs, this Note
will have the same terms as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to
the Original Stated Maturity Date of this Note, the Company may, at its
option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the
Trustee to send by telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) notice of such higher interest rate to
the Holder of this Note. Such notice shall be irrevocable. All Notes with
respect to which the Stated Maturity is extended will bear such higher
interest rate for the Extension Period, whether or not tendered for repayment
as provided in the next paragraph.
If the Company elects to extend the Stated Maturity of this Note, the
Holder will have the option to elect repayment of this Note by the Company on
the Original Stated Maturity Date at a price equal to the principal amount
hereof, plus interest accrued and unpaid thereon to such date. In order to
obtain repayment on the Original Stated Maturity Date, the Holder must follow
the procedures set forth under Section 4 for optional repayment, except that
the period for delivery or notification to the Trustee shall be at least 25
but not more than 35 calendar days prior to the Original Stated Maturity Date.
A Holder who has tendered this Note for repayment following receipt of an
Extension Notice may revoke such tender for repayment by written notice to the
Trustee received prior to 5:00 P.M., New York City time, on the tenth calendar
day prior to the Original Stated Maturity Date.
SECTION 7. Sinking Fund. This Note will not be subject to any sinking
fund.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event the principal amount hereof is declared to be due
and payable immediately by reason of an Event of Default or in the event of
redemption or repayment prior to the Stated Maturity hereof in lieu of the
principal amount due at the Stated Maturity hereof shall be the Amortized Face
Amount of this Note as of the date of declaration, redemption or repayment, as
the case may be. The "Amortized Face Amount" of this Note shall be the amount
equal to (a) the principal amount of this Note multiplied by the Issue Price
(as set forth on the face hereof) plus (b) that portion of the difference
between the dollar amount determined pursuant to the preceding clause (a) and
the principal amount hereof that has accreted at the Yield to Maturity (as set
forth on the face hereof) (computed in accordance with generally accepted
United States bond yield computation principles) to such date of declaration,
redemption or payment, but in no event shall the Amortized Face Amount of this
Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to
Notes of this series shall occur and be continuing, the principal of the Notes
of this series may be declared due and payable in the manner and with the
effect provided in the Indenture; provided, however, that notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount so declared due and payable shall be the Amortized Face
Amount of this Note as of the date of such declaration.
SECTION 10. Modifications and Waivers; Obligation of the Company
Absolute. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in principal amount of the
Securities at the time outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates, and in the coin or
currency, herein prescribed.
SECTION 11. Defeasance and Covenant Defeasance. The Indenture contains
provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Note and (b) certain restrictive covenants and the related
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise noted on the
face hereof, the Notes of this series are issuable only in global or
certificated registered form, without coupons, in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth and to the limitations described below,
if applicable, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series and with like terms and conditions,
of a different authorized denomination, as requested by the Holder
surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein set forth and to the limitations
described below, if applicable, the transfer of this Note is registerable in
the Security Register upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and
the Security Registrar (which shall initially be the Trustee, at its principal
corporate trust office in The City of New York) duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Notes with like terms and conditions, of authorized denominations and for
the same Stated Maturity and aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Note is a global Note (as specified on the face hereof), this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Indenture. Except as provided above, owners of beneficial
interests in this permanent global Note will not be entitled to receive
physical delivery of Notes in certificated registered form and will not be
considered the Holders thereof for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Company, the Trustee or any such agent shall be
affected by notice to the contrary.
SECTION 15. Governing Law. The Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
shall be deemed to include the Notes. "Business Day" means any Monday,
Tuesday, Wednesday, Thursday or Friday that in The City of New York is not a
day on which banking institutions are authorized or required by law,
regulation or executive order to close; provided that with respect to a
Specified Currency, such day is also not a day on which banking institutions
are authorized or required by law, regulation or executive order to close in
the principal financial center of the country of such Specified Currency (or
in the case of ECUs, is not a day designated as an ECU Non-Settlement Day by
the ECU Banking Association in Paris or otherwise generally regarded in the
ECU interbank market as a day on which payments on ECUs shall not be made).
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the
Company repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the
face hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 4 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note
is to be repaid pursuant to Section 5 hereof, or to the Original Stated
Maturity Date, if this Note is to be repaid pursuant to Section 6 hereof.
Specify the denomination or denominations (which shall be $100,000 or an
integral multiple of $1,000 in excess thereof or, if the Note is denominated
in a currency other than U.S. dollars, an Authorized Denomination) of the Note
or Notes to be issued to the Holder for the portion of the within Note not
being repaid (in the absence of any specification, one such Note will be
issued for the portion not being repaid):
- -----------------------------------
Dated:
- ----------------------------------- -----------------------------------
Signature
Sign exactly as name appears on the
front of this Note.
Principal amount to be repaid if Indicate address where check is to
amount to be repaid is less than be sent, if repaid:
the entire principal amount of -----------------------------------
this Note (principal amount
remaining must be an authorized -----------------------------------
denomination)
$__________________________________
(which shall be an integral
multiple of $1,000 or, if the
Note is denominated in a SOCIAL SECURITY OR OTHER TAXPAYER
currency other than U.S. ID NUMBER
dollars, of an amount equal
to the integral multiples
referred to on the face hereof ____________________________________
under "Authorized Denominations"
(or, if no such reference is
made, an amount equal to the
minimum Authorized Denomination)).
[/TABLE]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT Custodian
----------------------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
----------------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
--------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- -----------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________ attorney to transfer said Note on the books of
the Company, with full power of substitution in the premises.
Dated: _______________________ ____________________________________________
Signature
Sign exactly as name appears on the front
of this Note [SIGNATURE MUST BE GUARANTEED
by a commercial bank, a trust company or
by a member of the New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
[Face of Note]
CUSIP NO.
REGISTERED NO. FLB_ PRINCIPAL AMOUNT:
ILLINOIS CENTRAL RAILROAD COMPANY
MEDIUM-TERM NOTE, SERIES B
(Floating Rate)
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a global Note and the following legend is applicable:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of CEDE & CO., or such other name
as requested by an authorized representative of The Depository Trust Company,
and any payment is made to CEDE & CO. or such other entity, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, CEDE & CO., has an interest herein.
The following summary of terms is subject to the information set forth
on the reverse hereof:
<TABLE>
<S> <C>
OPTIONAL REDEMPTION: [ ] YES NO
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE:
STATED MATURITY: REDEMPTION PRICE: Initially __% of Principal Amount and declining
SPECIFIED CURRENCY: by __% of the Principal Amount on each anniversary of the Initial
Redemption Date until the Redemption Price is 100% of the Principal
Amount.Amount.
OPTION TO ELECT PAYMENTS IN U.S. DOLLARS:
[ ] YES [ ] NO
FORM: [ ] BOOK ENTRY OPTION TO ELECT
[ ] CERTIFICATED REPAYMENT: [ ] YES [ ] NO
INTEREST RATE BASIS: OPTIONAL REPAYMENT DATES:
INDEX MATURITY: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATES: OPTIONAL INTEREST RESET: [ ] YES [ ] NO
INITIAL INTEREST RATE: OPTIONAL INTEREST RESET DATES:
MAXIMUM INTEREST RATE: OPTIONAL EXTENSIONS OF
MATURITY [ ] YES [ ] NO
MINIMUM INTEREST RATE:
SPREAD: EXTENSION PERIOD:
SPREAD MULTIPLIER: NUMBER OF EXTENSION PERIODS:
RESET PERIOD: FINAL MATURITY DATE:
INTEREST RESET DATES: OTHER PROVISIONS:
ANNEX ATTACHED [ ] YES [ ] NO
(and incorporated herein by reference)
INTEREST DETERMINATION DATES:
INTEREST PAYMENT DATES:
OVERDUE RATE:
</TABLE>
CALCULATION AGENT:
CURRENCY DETERMINATION
AGENT: AMORTIZING NOTE: [ ] YES [ ] NO
U.S. DEPOSITARY:
If this Note was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
ORIGINAL ISSUE DISCOUNT NOTE:TOTAL AMOUNT OF OID: ISSUE PRICE (expressed
as percentage of
aggregate principal
amount):
[ ] YES [ ] NO
YIELD TO MATURITY:
In addition, if this Note is subject to the rules of Treasury Regulations
Section 1.1275-4, then solely for tax purposes, either (A) or (B) below shall
also be completed:
(A) COMPARABLE YIELD:
PROJECTED PAYMENT SCHEDULE:
(B) NAME or TITLE of issuer representative
to contact for information required to
comply with treasury Regulatiopns Section 1.1275-4:
ADDRESS or TELEPHONE NUMBER of such representative:
ILLINOIS CENTRAL RAILROAD COMPANY, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to CEDE & Co. or
registered assigns, the principal sum set forth above on the Stated Maturity
shown above, and to pay interest thereon from and including the Original Issue
Date shown above or from and including the most recent Interest Payment Date
(as hereinafter defined) to which interest has been paid or duly provided for,
as the case may be.
Interest will be paid on the Interest Payment Date or Dates shown above
("Interest Payment Dates"), at the rate per annum determined in accordance
with the provisions on the reverse hereof, depending on the Interest Rate
Basis specified above, commencing with the first such Interest Payment Date
next succeeding the Original Issue Date shown above (except as provided below)
until the principal hereof is paid or made available for payment and on the
Stated Maturity, and, if specified above, interest shall accrue on any overdue
principal and on any overdue installment of interest (to the extent that the
payment of such interest shall be legally enforceable) at the Overdue Rate per
annum set forth above. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more predecessor
Notes) is registered at the close of business on the Regular Record Date set
forth above next preceding such Interest Payment Date. The first payment of
interest on any Note originally issued between a Regular Record Date and an
Interest Payment Date will be made on the Interest Payment Date following the
next succeeding Regular Record Date to the registered owner on such next
succeeding Regular Record Date. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not less than 10 calendar
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payments of interest to be paid in U.S. dollars (other than interest,
and if this is an Amortizing Note, principal (if this is not a global Note)
payable at the Stated Maturity) will be made by mailing a check to the Holder
at the address of the Holder appearing in the Security Register as of the
applicable Regular Record Date. Notwithstanding the foregoing, at the option
of the Company, all payments of interest and, if this is an Amortizing Note,
principal on this Note may be made by wire transfer of immediately available
funds to an account maintained by such Holder with a bank located in the
United States as designated by the Holder not less than 15 calendar days prior
to the Interest Payment Date. If a Holder holds U.S. $10,000,000 or more in
aggregate principal amount of Notes of like tenor and terms (including the
same Interest Payment Dates) (or is the Holder of the equivalent thereof in a
Specified Currency other than U.S. dollars), such Holder shall be entitled to
receive payments of interest (other than at the Stated Maturity or upon
earlier redemption or repayment) in U.S. dollars by wire transfer of
immediately available funds, but only if appropriate payment instructions have
been received in writing by the Trustee not less than 15 calendar days prior
to the applicable Interest Payment Date.
Simultaneously with the election by the Holder to receive payments in a
Specified Currency other than U.S. dollars (by written request to the Trustee,
as provided below), the Holder shall provide appropriate payment instructions
to the Trustee, and all such payments will be made in immediately available
funds to a bank account maintained by the Holder in the country of the
Specified Currency (or, with respect to ECUs, Brussels). If such a payment
with respect to this Note cannot be made by wire transfer because the required
designation has not been received by the Trustee on or before the requisite
date or for any other reason, a notice will be mailed to the Holder at its
registered address requesting a designation pursuant to which such wire
transfer can be made and, upon the Trustee's receipt of such a designation,
such payment will be made within 15 days of such receipt.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment
or governmental charge imposed upon the Holder of this Note. In the event
that payment is so made in accordance with the instructions of the Holder,
such wire transfer shall be deemed to constitute full and complete payment of
such interest and principal on this Note. If this is not a global Note,
payment of the principal, premium, if any, and interest payable at Maturity in
respect of this Note will be paid in immediately available funds upon
surrender of this Note accompanied by wire instructions at the principal
office of the Trustee, provided that this Note is presented in time for the
Trustee to make such payments in such funds in accordance with its normal
procedures.
If this Note is a Book-Entry Note as specified above, while this Note is
represented by one or more Book-Entry Notes registered in the name of the U.S.
Depositary or its nominee, the Company will cause payments of principal of,
premium, if any, and interest on such Book-Entry Notes to be made to the U.S.
Depositary or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the U.S. Depositary or its
nominee, and otherwise in accordance with such agreements, regulations and
procedures.
If the Holder of this Note (as indicated above) is the U.S. Depositary
or a nominee of the U.S. Depositary, this Note is a global Note and the
following legend is applicable except as specified on the reverse hereof:
UNLESS AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE REGISTERED
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE U.S.
DEPOSITARY TO THE NOMINEE OF THE U.S. DEPOSITARY OR BY A NOMINEE OF THE U.S.
DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE U.S. DEPOSITARY OR
BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S. DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR U.S. DEPOSITARY.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:___________________________
ILLINOIS CENTRAL RAILROAD COMPANY
By:______________________________
Name:
Title:
[CORPORATE SEAL]
By:______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Security is one of the Securities issued
pursuant to the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By:
Authorized Officer
[Reverse of Note]
ILLINOIS CENTRAL RAILROAD COMPANY
MEDIUM-TERM NOTE, SERIES B
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of July 25, 1996 (herein
called the "Indenture"), between the Company and The Chase Manhattan Bank, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Note is one of the Securities of the series designated on the face hereof.
The Notes may bear different dates, mature at different times, bear interest
at different rates, be subject to different redemption provisions and may
otherwise vary, all as provided in the Indenture.
SECTION 2. Interest Rate Calculations; Payments. The interest rate on
this Note will be equal to either (i) the interest rate calculated by
reference to the specified Interest Rate Basis plus or minus the Spread, if
any, or (ii) the interest rate calculated by reference to the specified
Interest Rate Basis multiplied by the Spread Multiplier, if any. The "Spread"
is the number of basis points (one basis point equals one-hundredth of a
percentage point) specified on the face hereof as being applicable to this
Note, and the "Spread Multiplier" is the percentage specified on the face
hereof as being applicable to this Note. Set forth on the face hereof are the
Interest Rate Basis and the Spread or Spread Multiplier, if any, and the
maximum or minimum interest rate limitation, if any, applicable to this Note.
Set forth on the face hereof are particulars as to the Calculation Agent
(unless specified otherwise, The Chase Manhattan Bank (in such capacity, the
"Calculation Agent")), Index Maturity, Original Issue Date, interest rate in
effect for the period from the Original Issue Date to the first Interest Reset
Date set forth on the face hereof (the "Initial Interest Rate"), Interest
Determination Dates, Interest Payment Dates, Regular Record Dates and Interest
Reset Dates with respect to this Note.
Except as provided below, interest on this Note will be payable (i) if
this Note resets daily, weekly or monthly, on the third Wednesday of each
month or on the third Wednesday of March, June, September and December of each
year, as specified on the face hereof; (ii) if this Note resets quarterly, on
the third Wednesday of March, June, September and December of each year; (iii)
if this Note resets semi-annually, on the third Wednesday of each of two
months of each year specified on the face hereof; and (iv) if this Note resets
annually, on the third Wednesday of one month of each year specified on the
face hereof (each such day being an "Interest Payment Date"), and in each case
at Maturity. If any Interest Payment Date, other than Maturity, for this Note
would otherwise be a day that is not a Business Day, such Interest Payment
Date shall be postponed to the next day that is a Business Day, except that if
this Note is a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date shall be the immediately preceding
London Business Day. If the Maturity for this Note falls on a day that is not
a Business Day, payment of principal, premium, if any, and interest with
respect to this Note will be made on the next succeeding Business Day with the
same force and effect as if made on the due date, and no additional interest
shall be payable as a result of such delayed payment.
The rate of interest on this Note will be reset daily, weekly, monthly,
quarterly, semi-annually or annually (such period being the "Reset Period" for
such Note, and the first day of each Reset Period being an "Interest Reset
Date"), as specified on the face hereof. The Interest Reset Dates will be, if
this Note resets daily, each Business Day; if this Note resets weekly (unless
the Interest Rate Basis on the face hereof is the Treasury Rate), the
Wednesday of each week; if this Note resets weekly and the Interest Rate Basis
on the face hereof is the Treasury Rate, the Tuesday of each week; if this
Note resets monthly (unless the Interest Rate Basis on the face hereof is the
11th District Cost of Funds Rate), the third Wednesday of each month; if this
Note resets monthly and the Interest Rate Basis on the face hereof is the 11th
District Cost of Funds Rate, the first calendar day of the month; if this Note
resets quarterly, the third Wednesday of each March, June, September and
December; if this Note resets semi-annually, the third Wednesday of the two
months of each year specified on the face hereof; and if this Note resets
annually, the third Wednesday of one month of each year specified on the face
hereof; provided, however, that the interest rate in effect from and including
the Original Issue Date to but excluding the first Interest Reset Date will be
the Initial Interest Rate specified on the face hereof. If the Interest Reset
Date would otherwise be a day that is not a Business Day, the Interest Reset
Date shall be postponed to the next day that is a Business Day, except that if
the Interest Rate Basis on the face hereof is LIBOR, if such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding London Business Day. Each adjusted rate shall be
applicable on and after the Interest Reset Date to which it relates to, but
not including, the next succeeding Interest Reset Date or until the Stated
Maturity or the date of redemption, as the case may be.
The interest rate for each Reset Period will be the rate determined by
the Calculation Agent on the Calculation Date (as defined below) pertaining to
the Interest Determination Date pertaining to the Interest Reset Date for such
Reset Period. Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date for (a) a Commercial
Paper Rate Note (the "Commercial Paper Interest Determination Date"), (b) a
Federal Funds Rate Note (the "Federal Funds Interest Determination Date"), (c)
a CD Rate Note (the "CD Interest Determination Date'), (d) a Prime Rate Note
(the "Prime Interest Determination Date"), (e) a CMT Rate Note (the "CMT
Interest Determination Date"), or (f) a Kenny Rate Note (the "Kenny Rate
Interest Determination Date") will be the second Business Day prior to such
Interest Reset Date. Unless otherwise specified on the face hereof, the
Interest Determination Date pertaining to an Interest Reset Date for an 11th
District Cost of Funds Rate Note (the "11th District Interest Determination
Date") will be the last Business Day of the month immediately preceding such
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below). Unless
otherwise specified on the face hereof, the Interest Determination Date
pertaining to an Interest Reset Date for a LIBOR Note (the "LIBOR Interest
Determination Date") will be the second London Business Day immediately
preceding such Interest Reset Date. Unless otherwise specified on the face
hereof, the Interest Determination Date pertaining to an Interest Reset Date
for a Treasury Rate Note (the "Treasury Interest Determination Date") will be
the day of the week in which such Interest Reset Date falls on which Treasury
bills would normally be auctioned. Treasury bills are usually sold at auction
on Monday of each week, unless that day is a legal holiday, in which case the
auction is usually held on the following Tuesday, except that such auction may
be held on the preceding Friday. If, as a result of a legal holiday, an
auction is so held on the preceding Friday, such Friday will be the Treasury
Interest Determination Date pertaining to the Reset Period commencing in the
next succeeding week. If an auction date shall fall on any Interest Reset
Date for a Treasury Rate Note, then such Interest Reset Date shall instead be
the first Business Day immediately following such auction date. Unless
otherwise specified on the face hereof, the "Calculation Date" pertaining to
any Interest Determination Date shall be the earlier of (i) the tenth calendar
day after the Interest Determination Date or, if such day is not a Business
Day, the next succeeding Business Day, or (ii) the Business Day preceding the
applicable Interest Payment Date or Maturity, as the case may be.
As used herein, "Business Day" means, unless otherwise specified on the
face hereof, any Monday, Tuesday, Wednesday, Thursday or Friday that in The
City of New York is not a day on which banking institutions are authorized or
required by law, regulation or executive order to close and, if the Interest
Rate Basis of this Note is LIBOR, is also a London Business Day; provided that
with respect to a Specified Currency, such day is also not a day on which
banking institutions are authorized or required by law, regulation or
executive order to close in the principal financial center of the country of
such Specified Currency (or in the case of ECUs, is not a day designated as an
ECU Non-Settlement Day by the ECU Banking Association in Paris or otherwise
generally regarded in the ECU interbank market as a day on which payments on
ECUs shall not be made). As used herein, "London Business Day" means any day
(a) if the Designated LIBOR Currency is other than the ECU, on which dealings
in deposits in such Designated LIBOR Currency are transacted in the London
interbank market or (b) if the Designated LIBOR Currency is the ECU, that is
not designated as an ECU Non-Settlement Day by the ECU Banking Association in
Paris or otherwise generally regarded in the ECU interbank market as a day on
which payments on ECUs shall not be made.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the
face hereof.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect of this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
Unless otherwise indicated on the face hereof, interest on this Note
will accrue from and including the date of issue or from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly provided for, as the case may be, to but excluding the
Interest Payment Date or the Maturity, as the case may be. Accrued interest
is calculated by multiplying the face amount of this Note by an accrued
interest factor. This accrued interest factor is computed by adding the
interest factors calculated for each day from and including the date of issue,
or from and including the last date to which interest has been paid or duly
provided for, to but excluding the date for which accrued interest is being
calculated. The interest factor for each such day (unless otherwise
specified) is computed by dividing the interest rate applicable to such day by
360, in the case of Commercial Paper Rate Notes, CD Rate Notes, 11th District
Cost of Funds Rate Notes, Federal Funds Rate Notes, LIBOR Notes and Prime Rate
Notes, or by the actual number of days in the year, in the case of Treasury
Rate Notes or CMT Rate Notes, or by 365 days in the case of Kenny Rate Notes.
The Calculation Agent shall calculate the interest rate on this Note, as
provided below. The Calculation Agent will, upon the request of the Holder of
this Note, provide the interest rate then in effect and, if then determined,
the interest rate which will become effective as a result of a determination
made with respect to the most recent Interest Determination Date with respect
to this Note. The Trustee shall act as the initial Calculation Agent for the
Notes. For purposes of calculating the rate of interest payable on this Note,
the Company will enter into an agreement with the Calculation Agent. The
Calculation Agent's determination of any interest rate shall be final and
binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided
below, the interest rate on this Note for any interest period shall not be
greater than the maximum interest rate, if any, or less than the minimum
interest rate, if any, specified on the face hereof. The interest rate on
this Note will in no event be higher than the maximum rate permitted by New
York or other applicable law, as the same may be modified by United States
law of general application. Determination of Commercial Paper Rate. If
the Interest Rate Basis specified on the face hereof is Commercial Paper
Rate, the interest rate determined with respect the Commercial Paper Rate
Interest Determination Date shall be the Commercial Paper Rate plus or
minus the Spread, if any, or multiplied by the Spread Multiplier, if any,
as specified on the face hereof, as determined on such Commercial Paper
Rate Interest Determination Date.
"Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the Index Maturity
designated on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of Governors ("H.15(519)")
under the heading "Commercial Paper." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Commercial Paper Interest Determination Date, then the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date shall be the Money Market Yield of the rate on such
Commercial Paper Interest Determination Date for commercial paper having the
Index Maturity designated on the face hereof as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any successor publication
("Composite Quotations") under the heading "Commercial Paper." If by 3:00
P.M., New York City time, on such Calculation Date such rate is not yet
published in either H.15(519) or Composite Quotations, then the Commercial
Paper Rate for such Commercial Paper Interest Determination Date shall be
calculated by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered rates (quoted on a bank discount basis) as of
11:00 A.M., New York City time, on such Commercial Paper Interest
Determination Date, of three leading dealers of commercial paper in The City
of New York selected by the Calculation Agent for commercial paper having the
Index Maturity designated on the face hereof placed for an industrial issuer
whose bond rating is "AA," or the equivalent, from a nationally recognized
securities rating agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Commercial Paper Rate with respect to such Commercial Paper
Interest Determination Date will be the Commercial Paper Rate in effect
immediately prior to such Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded, if necessary, to the nearest one hundred-thousandth of a percent)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
---------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
Determination of CD Rate. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to the CD
Interest Determination Date shall be the CD Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, as specified on the face
hereof, as determined on such CD Interest Determination Date.
"CD Rate" means, with respect to any CD Interest Determination Date, the
rate on such date for negotiable certificates of deposit having the Index
Maturity designated on the face hereof as published in H.15(519) under the
heading "CDs (Secondary Market)." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such CD Interest Determination Date, then the CD Rate with
respect to such CD Interest Determination Date shall be the rate on such CD
Interest Determination Date for negotiable certificates of deposit having the
Index Maturity designated on the face hereof as published in Composite
Quotations under the heading "Certificates of Deposit." If by 3:00 P.M., New
York City time, on such Calculation Date such rate is not published in either
H.15(519) or Composite Quotations, then the CD Rate on such CD Interest
Determination Date shall be calculated by the Calculation Agent and shall be
the arithmetic mean of the secondary market offered rates as of 10:00 A.M.,
New York City time, on such CD Interest Determination Date of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The City
of New York selected by the Calculation Agent for negotiable certificates of
deposit of major United States money market banks (in the market for
negotiable certificates of deposit) with a remaining maturity closest to the
Index Maturity specified on the face hereof in a denomination of $5,000,000;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
with respect to such CD Interest Determination Date will be the CD Rate in
effect immediately prior to such CD Interest Determination Date.
Determination of CMT Rate. If the Interest Rate Basis specified on the face
hereof is CMT Rate, the interest rate determined with respect to the CMT
Interest Determination Date shall be the CMT Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, as specified on the face
hereof, as determined on such CMT Interest Determination Date.
"CMT Rate" means, with respect to any CMT Interest Determination Date,
the rate displayed on the Designated CMT Telerate Page (as defined below)
under the caption ". . . Treasury Constant Maturities . . . Federal Reserve
Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under the column
for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
week, or the month, as applicable, ended immediately preceding the week in
which the applicable CMT Interest Determination Date occurs. If such rate is
no longer displayed on the relevant page, or if not displayed by 3:00 P.M.,
New York City time, on the Calculation Date pertaining to such CMT Interest
Determination Date, then the CMT Rate for such CMT Interest Determination Date
will be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant H.15(519). If such rate is no longer
published, or if not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CMT Interest Determination Date, then the
CMT Rate for such CMT Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index (or other United
States Treasury rate for the Designated CMT Maturity Index) for the CMT
Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve
System or the United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in the relevant H.15(519). If such
information is not provided by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CMT Interest Determination Date, then the
CMT Rate for the CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately
3:30 P.M., New York City time, on the CMT Interest Determination Date
reported, according to their written records, by three leading primary United
States government securities dealers (each, a "Reference Dealer") in The City
of New York selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated
CMT Maturity Index and a remaining term to maturity of not less than such
Designated CMT Maturity Index minus one year. If the Calculation Agent cannot
obtain three such Treasury Note quotations, the CMT Rate for such CMT Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on the CMT
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer
than three Reference Dealers selected by the Calculation Agent are quoting as
described herein, the CMT Rate will be the CMT Rate in effect on such CMT
Interest Determination Date. If two Treasury Notes with an original maturity
as described in the third preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the
Treasury Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof (or any other page
as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as published in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as published in H.15(519). If no such
page is specified on the face hereof, the Designated CMT Telerate Page shall
be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the Treasury Notes (either one, two, three, five, seven, ten, twenty or thirty
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Determination of Federal Funds Rate. If the Interest Rate Basis specified on
the face hereof is Federal Funds Rate, the interest rate determined with
respect to the Federal Funds Interest Determination Date shall be the Federal
Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof, as determined on such
Federal Funds Interest Determination Date.
"Federal Funds Rate" means, with respect to any Federal Funds Interest
Determination Date, the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." In the event that
such rate is not published prior to 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Federal Funds Interest Determination Date,
then the Federal Funds Rate with respect to such Federal Funds Interest
Determination Date shall be the rate on such Federal Funds Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, then the Federal Funds Rate with respect to such Federal Funds
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean (each as rounded, if necessary, to the nearest
one hundred-thousandth of a percent) of the rates as of 9:00 A.M., New York
City time, on such Federal Funds Interest Determination Date for the last
transaction in overnight Federal Funds arranged by three leading brokers of
Federal Funds transactions in The City of New York selected by the Calculation
Agent; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate with respect to such Federal Funds Interest Determination Date will
be the Federal Funds Rate in effect immediately prior to such Federal Funds
Interest Determination Date.
Determination of 11th District Cost of Funds Rate. If the Interest Rate Basis
specified on the face hereof is 11th District Cost of Funds Rate, the interest
rate determined with respect to the 11th District Interest Determination Date
shall be the 11th District Cost of Funds Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, specified on the face
hereof, as determined on such 11th District Interest Determination Date.
"11th District Cost of Funds Rate" means, with respect to any 11th
District Interest Determination Date, the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such 11th District
Interest Determination Date as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such 11th District
Interest Determination Date. If such rate does not appear on Telerate Page
7058 on any related 11th District Interest Determination Date, the 11th
District Cost of Funds Rate for such 11th District Interest Determination Date
shall be the monthly weighted average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District that was most
recently announced (the "Index") by the FHLB of San Francisco as such cost of
funds for the calendar month preceding the date of such announcement. If the
FHLB of San Francisco fails to announce such rate for the calendar month next
preceding such 11th District Interest Determination Date, then the 11th
District Cost of Funds Rate for such 11th District Interest Determination Date
will be the 11th District Cost of Funds Rate then in effect on such 11th
District Interest Determination Date.
Kenny Rate Notes. If the Interest Rate Basis specified on the face hereof is
Kenny Rate, the interest rate determined with respect to the Kenny Rate
Interest Determination Date shall be the Kenny Rate plus or minus the Spread,
if any, or multiplied by the Spread Multiplier, if any, specified on the face
hereof, as determined on such Kenny Rate Interest Determination Date.
"Kenny Rate" means, with respect to any Kenny Rate Interest
Determination Date, the high grade weekly index (the "Weekly Index") on such
date made available by Kenny Information Systems ("Kenny") to the Calculation
Agent. The Weekly Index is, and shall be, based upon 30 day yield evaluations
at par of bonds, the interest on which is exempt from Federal income taxation
under the Internal Revenue Code of 1986, as amended, of not less than five
high grade component issuers selected by Kenny which shall include, without
limitation, issuers of general obligation bonds. The specific issuers
included among the component issuers may be changed from time to time by Kenny
in its discretion. The bonds on which the Weekly Index is based shall not
include any bonds on which the interest is subject to a minimum tax or similar
tax under the Internal Revenue Code of 1986, as amended, unless all tax-exempt
bonds are subject to such tax. In the event Kenny ceases to make available
such Weekly Index, a successor indexing agent will be selected by the
Calculation Agent, such index to reflect the prevailing rate for bonds rated in
the highest short-term rating category by Moody's Investors Service, Inc. and
Standard & Poor's Corporation in respect of issuers most closely resembling
the high grade component issuers selected by Kenny for its Weekly Index, the
interest on which is (A) variable on a weekly basis, (B) exempt from Federal
income taxation under the Internal Revenue Code of 1986, as amended, and (C)
not subject to a minimum tax or similar tax under the Internal Revenue Code of
1986, as amended, unless all tax-exempt bonds are subject to such tax. If
such successor indexing agent is not available, the rate for any Kenny Rate
Interest Determination Date shall be 67% of the rate determined if the
Treasury Rate option had been originally selected.
Determination of LIBOR. If the Interest Rate Basis specified on the face
hereof is LIBOR, the interest rate determined with respect to the LIBOR
Interest Determination Date shall be LIBOR plus or minus the Spread, if any,
or multiplied by the Spread Multiplier, if any, specified on the face hereof,
as determined on such LIBOR Interest Determination Date.
LIBOR will be determined by the Calculation Agent in accordance with the
following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will
be either: (a) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the specified Designated LIBOR
Page (as defined below) by its terms provides only for a single rate, in which
case such single rate shall be used) for deposits in the Designated LIBOR
Currency (as defined below) having the Index Maturity designated on the face
hereof, commencing on the second London Business Day immediately following the
LIBOR Interest Determination Date, which appear on the Designated LIBOR Page
specified on the face hereof as of 11:00 A.M., London time, on that LIBOR
Interest Determination Date, if at least two such offered rates appear
(unless, as aforesaid, only a single rate is required) on such Designated
LIBOR Page, or (b) if "LIBOR Telerate" is specified on the face hereof, the
rate for deposits in the Designated LIBOR Currency (as defined below) having
the Index Maturity designated on the face hereof, commencing on the second
London Business Day immediately following such LIBOR Interest Determination
Date, which appears on the Designated LIBOR Page specified on the face hereof
as of 11:00 A.M. London time on that LIBOR Interest Determination Date.
Notwithstanding the foregoing, if fewer than two offered rates appear on the
Designated LIBOR Page with respect to LIBOR Reuters (unless the specified
Designated LIBOR Page with respect to LIBOR Reuters by its terms provides only
for a single rate, in which case such single rate shall be used), or if no
rate appears on the Designated LIBOR Page with respect to LIBOR Telerate,
whichever may be applicable, LIBOR in respect of the related LIBOR Interest
Determination Date will be determined as if the parties had specified the rate
described in clause (ii) below.
(ii) With respect to any LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page with respect
to LIBOR Reuters (unless the Designated LIBOR Page by its terms provides only
for a single rate, in which case such single rate shall be used), or if no
rate appears on the Designated LIBOR Page with respect to LIBOR Telerate, as
the case may be, the Calculation Agent will request the principal London
office of each of four major banks in the London interbank market selected by
the Calculation Agent to provide the Calculation Agent with its offered rate
quotation for deposits in the Designated LIBOR Currency (as defined below) for
the period of the Index Maturity specified on the face hereof, commencing on
the second London Business Day immediately following such LIBOR Interest
Determination Date, to prime banks in the London interbank market as of 11:00
A.M., London time, on such LIBOR Interest Determination Date and in a principal
amount that is representative for a single transaction in such Designated
LIBOR Currency in such market at such time. If at least two such quotations
are provided, LIBOR determined on such LIBOR Interest Determination Date will
be the arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date will be
the arithmetic mean of the rates quoted as of 11:00 A.M. in the applicable
Principal Financial Center (as defined below), on such LIBOR Interest
Determination Date by three major banks in such Principal Financial Center
selected by the Calculation Agent for loans in the Designated LIBOR Currency
to leading banks [commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date], having the Index Maturity
designated on the face hereof in a principal amount that is representative for
a single transaction in such Designated LIBOR Currency in such market at such
time; provided, however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR determined on such
LIBOR Interest Determination Date will be LIBOR in effect on such LIBOR
Interest Determination Date.
"Designated LIBOR Currency" means the currency (including a composite
currency), if any, designated on the face hereof as the Designated LIBOR
Currency. If no such currency is designated on the face hereof, the
Designated LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London interbank
rates of major banks for the applicable Designated LIBOR Currency (if "LIBOR
Reuters" is designated on the face hereof), or (b) the display on the Dow
Jones Telerate Service for the purpose of displaying the London interbank
rates of major banks for the applicable designated LIBOR Currency (if "LIBOR
Telerate" is designated on the face hereof). If neither LIBOR Reuters nor
LIBOR Telerate is specified on the face hereof, LIBOR for the applicable
Designated LIBOR Currency will be determined as if LIBOR Telerate (and, if the
U.S. dollar is the Designated LIBOR Currency, page 3750) had been chosen.
"Principal Financial Center" means, unless otherwise specified on the
face hereof, the capital city of the country that issues as its legal tender
the Designated LIBOR Currency of this Note, except that with respect to U.S.
dollars and ECUs, the Principal Financial Center shall be The City of New York
and Brussels, respectively.
Determination of Treasury Rate. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the interest rate determined with respect to the
Treasury Interest Determination Date shall be the Treasury Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified
on the face hereof, as determined on such Treasury Interest Determination Date.
"Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury bills") having the Index Maturity specified on
the face hereof as published in H.15(519) under the heading, "Treasury bills
- -- auction average (investment)" or, if not so published by 3:00 P.M., New
York City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, the average auction rate (expressed as a bond equivalent,
on the basis of a year of 365 or 366 days, as applicable, and applied on a
daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that such rate is not available by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, or if no such auction is held in a particular week, then
the Treasury Rate with respect to such Treasury Interest Determination Date
shall be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Interest Determination Date, of three leading primary U.S.
government securities dealers selected by the Calculation Agent for the issue
of Treasury bills with a remaining maturity closest to the Index Maturity
designated on the face hereof; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate with respect to such Treasury Interest
Determination Date will be the Treasury Rate in effect immediately prior to
such Treasury Interest Determination Date.
Determination of Prime Rate. If the Interest Rate Basis specified on the face
hereof is the Prime Rate, the interest rate determined with respect to the
Prime Interest Determination Date shall be the Prime Rate plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any, specified on
the face hereof, as determined on such Prime Interest Determination Date.
"Prime Rate" means, with respect to any Prime Interest Determination
Date, the rate set forth on such date in H.15(519) under the heading "Bank
Prime Loan." In the event that such rate is not published prior to 9:00 A.M.,
New York City time, on the Calculation Date pertaining to such Prime Interest
Determination Date, then the Prime Rate with respect to such Prime Interest
Determination Date shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen USPRIME1
Page as such bank's prime rate or base lending rate as in effect for that
Prime Interest Determination Date. If fewer than four such rates appear on
the Reuters Screen USPRIME1 Page for the Prime Interest Determination Date,
the Prime Rate with respect to such Prime Interest Determination Date shall be
the arithmetic mean of the prime rates quoted on the basis of the actual
number of days in the year divided by 360 as of the close of business on such
Prime Interest Determination Date by at least two of the three major money
center banks in The City of New York selected by the Calculation Agent. If
fewer than two quotations are provided, the Prime Rate with respect to such
Prime Interest Determination Date shall be determined on the basis of the rates
furnished in The City of New York by the appropriate number of substitute
banks or trust companies organized and doing business under the laws of the
United States, or any state thereof, having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by Federal
or state authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the appropriate number of substitute banks
or trust companies selected as aforesaid are not quoting as mentioned in this
sentence, the Prime Rate with respect to such Prime Interest Determination
Date will be the Prime Rate in effect immediately prior to such Prime Interest
Determination Date. "Reuters Screen USPRIME1 Page" means the display
designated as page "USPRIME1" on the Reuters Monitor Money Rate Service (or
such other page as may replace the USPRIME1 page on the service for the
purpose of displaying the prime rate or base lending rate of major banks).
The Calculation Agent shall calculate the interest rate on this Note in
accordance with the foregoing as soon as practicable after the Interest
Determination Date.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U.S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as
the case may be. Such request may be delivered by mail, by hand or by cable,
telex or any other form of facsimile transmission. Any such request made with
respect to this Note by a Holder will remain in effect with respect to any
further payments of interest and principal (and premium, if any) with respect
to this Note payable to such Holder, unless such request is revoked by written
notice received by the Paying Agent on or prior to the relevant Regular Record
Date or the date 15 days prior to Maturity, as the case may be (but no such
revocation may be made with respect to payments made on this Note if an Event
of Default has occurred with respect hereto or upon the giving of a notice of
redemption). A Holder whose Note is registered in the name of a broker or
nominee should contact such broker or nominee to determine whether and how an
election to receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by the Holder of this Note who
elects to receive payments in U.S. dollars will be based on the highest
indicated bid quotation for the purchase of U.S. dollars in exchange for the
Specified Currency obtained by the Currency Determination Agent (as defined
below) at approximately 11:00 A.M., New York City time, on the second Business
Day next preceding the applicable payment date (the "Conversion Date") from
the bank composite or multicontributor pages of the Quoting Source for three
(or two if three are not available) major banks in The City of New York. The
first three (or two) such banks selected by the Currency Determination Agent
which are offering quotes on the Quoting Source will be used. If fewer than
two such bid quotations are available at 11:00 A.M., New York City time, on
the second Business Day next preceding the applicable payment date, such
payment will be based on the Market Exchange Rate as of the second Business
Day next preceding the applicable payment date. If the Market Exchange Rate
for such date is not then available, such payment will be made in the Specified
Currency. As used herein, the "Quoting Source" means Reuters Monitor Foreign
Exchange Service, or if the Currency Determination Agent determines that such
service is not available, Telerate Monitor Foreign Exchange Service, or if the
Currency Determination Agent determines that neither service is available such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All
currency exchange costs associated with any payment in U.S. dollars on this
Note will be borne by the Holder by deductions from such payment. Any
currency determination agent (the "Currency Determination Agent") with respect
to this Note is specified on the face hereof.
If payment in respect of this Note is required to be made in any
currency unit (e.g. ECUs) and such currency unit is unavailable, in the good
faith judgment of the Company, due to the imposition of exchange controls or
other circumstances beyond the Company's control, then all payments in respect
of this Note shall be made in U.S. dollars until such currency unit is again
available. The amount of each payment of U.S. dollars shall be computed on
the basis of the equivalent of the currency unit in U.S. dollars, which shall
be determined by the Currency Determination Agent on the following basis. The
component currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of the
currency unit as of the Conversion Date. The equivalent of the currency unit
in U.S. dollars shall be calculated by aggregating the U.S. dollar equivalents
of the Component Currencies. The U.S. dollar equivalent of each of the
Component Currencies shall be determined by the Currency Determination Agent
on the basis of the Market Exchange Rate for each such Component Currency as
of the Conversion Date. "Market Exchange Rate" means the noon buying rate in
The City of New York for cable transfers of such Specified Currency as
certified for customs purposes by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a
Component Currency shall be divided or multiplied in the same proportion. If
two or more Component Currencies are consolidated into a single currency, the
amounts of those currencies as Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single currency. If any
Component Currency is divided into two or more currencies, the amount of the
original Component Currency shall be replaced by the amounts of such two or
more currencies, the sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Currency Determination
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this Note.
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward)
and all currency or currency unit or dollar amounts used in or resulting from
any such calculation in respect of the Notes will be rounded to the nearest
one-hundredth of a unit (with five one-thousandths being rounded upward) or
nearest cent (with one-half cent being rounded upward), as the case may be.
SECTION 3. Redemption. If so specified on the face hereof, the Company
may at its option redeem this Note in whole or from time to time in part on or
after the date designated as the Initial Redemption Date on the face hereof at
the redemption price specified on the face hereof, together with accrued and
unpaid interest to the date of redemption, but interest installments that are
due on or prior to the date of redemption will be payable to the Holder of
this Note of record at the close of business on the relevant Regular Record
Date referred to on the face hereof, all as provided in the Indenture. The
Company may exercise such option by causing the Trustee to mail a notice of
such redemption at least 30 but not more than 60 calendar days prior to the
date of redemption, subject to all the provisions and conditions of the
Indenture. In the event of redemption of this Note in part only, a new Note
or Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
SECTION 4. Repayment. If so specified on the face hereof, this Note
will be repayable prior to Stated Maturity at the option of the Holder on the
Optional Repayment Dates shown on the face hereof at the Optional Repayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of repayment. In order for this Note (if it is repayable
at the option of the Holder) to be repaid prior to Stated Maturity, the Paying
Agent must receive at least 30 but not more than 45 calendar days prior to an
Optional Repayment Date (i) this Note with the form below entitled "Option to
Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States of America setting forth the name of the Holder of this Note, the
principal amount of this Note, the principal amount of the Note to be repaid,
the certificate number or a description of the tenor and terms of this Note, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note with the form below entitled "Option to Elect
Repayment" duly completed will be received by the Paying Agent not later than
five Business Days after the date of such telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid). If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Trustee by such
fifth Business Day. Exercise of the repayment option by the Holder of this
Note shall be irrevocable, except that a Holder who has tendered this Note for
repayment may revoke any such tender for repayment by written notice to the
Trustee received prior to the close of business on the tenth calendar day
prior to the repayment date. The repayment option may be exercised by the
Holder of this Note for less than the entire principal amount of this Note
provided that the principal amount of this Note remaining outstanding after
such repayment is an authorized denomination. Upon such partial repayment,
this Note shall be cancelled and a new Note or Notes for the remaining
principal amount hereof shall be issued in the name of the Holder of this Note.
SECTION 5. Optional Interest Reset. If so specified on the face
hereof, the Spread or the Spread multiplier on this Note may be reset by the
Company on the date or dates specified on the face hereof (each an "Optional
Interest Reset Date"). The Company may exercise such option by notifying the
Trustee of such exercise at least 45 but not more than 60 calendar days prior
to an Optional Interest Reset Date. If the Company so notifies the Trustee of
such exercise, the Trustee will send, not later than 40 calendar days prior to
each Optional Interest Reset Date, by telegram, telex, facsimile transmission,
hand delivery or letter (first class, postage prepaid) to the Holder of this
Note a notice (the "Reset Notice") indicating (i) that the Company has elected
to reset the Spread or the Spread Multiplier, (ii) such new Spread or Spread
Multiplier and (iii) the provisions, if any, for redemption during the period
from such Optional Interest Reset Date to the next Optional Interest Reset
Date or, if there is no such next Optional Interest Reset Date, to the Stated
Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to
an Optional Interest Reset Date, the Company may, at its option, revoke the
Spread and/or the Spread Multiplier provided for in the Reset Notice and
establish a Spread and/or Spread Multiplier resulting in a higher interest
rate for the Subsequent Interest Period commencing on such Optional
Interest Reset Date by causing the Trustee to send by telegram, telex,
facsimile transmission, hand delivery or letter (first class, postage
prepaid) notice of such Spread and/or Spread Multiplier resulting in a
higher interest rate to the Holder of this Note. Such notice shall be
irrevocable. All Notes with respect to which the Spread and/or the Spread
Multiplier is reset on an Optional Interest Reset Date will bear such
Spread and/or Spread Multiplier resulting in a higher interest rate,
whether or not tendered for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to reset
the Spread and/or Spread Multiplier of this Note, the Holder of this Note will
have the option to elect repayment of this Note by the Company on such
Optional Interest Reset Date at a price equal to the principal amount hereof
plus interest accrued and unpaid thereon to such Optional Interest Reset Date.
In order to obtain repayment on an Optional Interest Reset Date, the Holder
must follow the procedures set forth under Section 4 for optional repayment
except that the period for delivery or notification to the Trustee shall be at
least 25 but not more than 35 calendar days prior to such Optional Interest
Reset Date. If the Holder has tendered this Note for repayment following
receipt of a Reset Notice, the Holder may revoke such tender for repayment by
written notice to the Trustee received prior to 5:00 P.M., New York City time,
on the tenth calendar day prior to such Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face
hereof, the Stated Maturity of this Note may be extended at the option of the
Company for the period or periods of from one to five whole years specified on
the face hereof (each an "Extension Period") up to but not beyond the date
(the "Final Maturity Date") set forth on the face hereof. The Company may
exercise such option with respect to this Note by notifying the Trustee of
such exercise at least 45 but not more than 60 calendar days prior to the
Stated Maturity of this Note in effect prior to the exercise of such option
(the "Original Stated Maturity Date"). If the Company so notifies the Trustee
of such exercise, the Trustee will send, not later than 40 calendar days prior
to the Original Stated Maturity Date, by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) to the
Holder of this Note, a notice (the "Extension Notice") indicating (i) that the
Company has elected to extend the Stated Maturity of this Note, (ii) the new
Stated Maturity, (iii) the interest rate applicable to the Extension Period
and (iv) the provisions, if any, for redemption during such Extension Period,
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Extension
Period. Upon the Trustee's sending of the Extension Notice, the Stated
Maturity of this Note shall be extended automatically and, except as modified
by the Extension Notice and as described in the next two paragraphs, this Note
will have the same terms as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to
the Original Stated Maturity Date of this Note, the Company may, at its
option, revoke the Spread and/or Spread Multiplier provided for in the
Extension Notice and establish a Spread and/or Spread Multiplier resulting
in a higher interest rate for the Extension Period by causing the Trustee
to send by telegram, telex, facsimile transmission, hand delivery or letter
(first class, postage prepaid) notice of such Spread and/or Spread
Multiplier resulting in a higher interest rate to the Holder of this Note.
Such notice shall be irrevocable. All Notes with respect to which the
Stated Maturity is extended will bear such Spread and/or Spread Multiplier
resulting in a higher interest rate for the Extension Period, whether or
not tendered for repayment as provided in the next paragraph.
If the Company elects to extend the Stated Maturity of this Note, the
Holder will have the option to elect repayment of this Note by the Company on
the Original Stated Maturity Date at a price equal to the principal amount
hereof, plus interest accrued and unpaid thereon to such date. In order to
obtain repayment on the Original Stated Maturity Date, the Holder must follow
the procedures set forth under Section 4 for optional repayment, except that
the period for delivery or notification to the Trustee shall be at least 25
but not more than 35 calendar days prior to the Original Stated Maturity Date.
A Holder who has tendered this Note for repayment following receipt of an
Extension Notice may revoke such tender for repayment by written notice to the
Trustee received prior to 5:00 P.M., New York City time, on the tenth calendar
day prior to the Original Stated Maturity Date.
SECTION 7. Sinking Fund. This Note will not be subject to any sinking
fund.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event the principal amount hereof is declared to be due
and payable immediately by reason of an Event of Default or in the event of
redemption or repayment prior to the Stated Maturity hereof in lieu of the
principal amount due at the Stated Maturity hereof shall be the Amortized Face
Amount of this Note as of the date of declaration, redemption or repayment, as
the case may be. The "Amortized Face Amount" of this Note shall be the amount
equal to (a) the principal amount of this Note multiplied by the Issue Price
(as set forth on the face hereof) plus (b) that portion of the difference
between the dollar amount determined pursuant to the preceding clause (a) and
the principal amount hereof that has accreted at the Yield to Maturity (as set
forth on the face hereof) (computed in accordance with generally accepted
United States bond yield computation principles) to such date of declaration,
redemption or payment, but in no event shall the Amortized Face Amount of this
Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to
Notes of this series shall occur and be continuing, the principal of the Notes
of this series may be declared due and payable in the manner and with the
effect provided in the Indenture; provided, however, that notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount so declared due and payable shall be the Amortized Face
Amount of this Note as of the date of such declaration.
SECTION 10. Modifications and Waivers; Obligation of the Company
Absolute. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of a majority in principal amount of the
Securities at the time outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates, and in the coin or
currency, herein prescribed.
SECTION 11. Defeasance and Covenant Defeasance. The Indenture contains
provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Note and (b) certain restrictive covenants and the related
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise noted on the
face hereof, the Notes of this series are issuable only in global or
certificated registered form, without coupons, in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth and to the limitations described below,
if applicable, Notes of this series are exchangeable for a like aggregate
principal amount of Notes of this series and with like terms and conditions,
of a different authorized denomination, as requested by the Holder
surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein set forth and to the limitations
described below, if applicable, the transfer of this Note is registerable in
the Security Register upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and
the Security Registrar (which shall initially be the Trustee, at its principal
corporate trust office in The City of New York) duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more
new Notes with like terms and conditions, of authorized denominations and for
the same Stated Maturity and aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Note is a global Note (as specified on the face hereof), this
Note is exchangeable for certificated Notes only upon the terms and conditions
provided in the Indenture. Except as provided above, owners of beneficial
interests in this permanent global Note will not be entitled to receive
physical delivery of Notes in certificated registered form and will not be
considered the Holders thereof for any purpose under the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
SECTION 14. Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Company, the Trustee or any such agent shall be
affected by notice to the contrary.
SECTION 15. Governing Law. The Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
shall be deemed to include the Notes.
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the
Company repay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Repayment Price indicated on the
face hereof, together with interest accrued and unpaid thereon to the date of
repayment, if this Note is to be repaid pursuant to Section 4 of this Note, or
(ii) 100% of the principal amount of this Note to be repaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note
is to be repaid pursuant to Section 5 hereof, or to the Original Stated
Maturity Date, if this Note is to be repaid pursuant to Section 6 hereof.
Specify the denomination or denominations (which shall be $100,000 or an
integral multiple of $1,000 in excess thereof or, if the Note is denominated
in a currency other than U.S. dollars, an Authorized Denomination) of the Note
or Notes to be issued to the Holder for the portion of the within Note not
being repaid (in the absence of any specification, one such Note will be
issued for the portion not being repaid):
<TABLE>
<S> <C> <C>
- -----------------------------------------------------------------
Dated:
- ----------------------------------------------------------------- -------------------------------------------------------
Signature
Sign exactly as name appears on the front of this Note.
Principal amount to be repaid if amount to be repaid is less Indicate address where check is to be sent, if repaid:
than the entire principal amount of this Note (principal amount
remaining must be an authorized denomination)
-------------------------------------------------------
$
- ----------------------------------------------------------------- -------------------------------------------------------
(which shall be an integral multiple of $1,000 or, if the Note is
denominated in a currency other than U.S. dollars, of an SOCIAL SECURITY OR OTHER TAXPAYER ID NUMBER
amount equal to the integral multiples referred to on the face
hereof under "Authorized Denominations" (or, if no such
-------------------------------------------------------
reference is made, an amount equal to the minimum
Authorized Denomination)).
</TABLE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT Custodian
-----------------------------------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------------------------------------------
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- ----------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing _________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated: __________________________ Signature__________________________________
Sign exactly as name appears on the
front of this Note [SIGNATURE
MUST BE GUARANTEED by a
commercial bank, a trust company
or by a member of the New York
Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
