<PAGE> 1
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: February 7, 1994
CONSOLIDATED RAIL CORPORATION
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Pennsylvania 1-9064 23-1989084
------------ ------ ----------
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
</TABLE>
Two Commerce Square, 2001 Market Street, Philadelphia, Pennsylvania, 19101-1417
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (215) 209-4000
<PAGE> 2
Item 5. Other Events
Establishment of Medium Term Note Program Pursuant to $500 million
Shelf Registration on Form S-3.
Pursuant to its Registration Statement on Form S-3 (No. 33-64670) for
the issuance of up to $500 million in securities, Consolidated Rail Corporation
("Conrail") has completed a Prospectus Supplement dated January 28, 1994, to
the Prospectus for the sale of debt securities dated August 10,1993 filed as an
exhibit to the referenced Registration Statement, pursuant to which Conrail may
issue, from time to time, notes due more than nine months from the date of
issuance in an aggregate amount up to $300 million.
Item 7. Exhibits
1.1 U.S. Distribution Agreement, dated January 28, 1994, among Consolidated
Rail Corporation, Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Salomon Brothers Inc. in connection with the
issuance and sale, from time to time, of up to $300 million in Medium Term
Notes.
4.6 Form of Fixed Rate Note Due More Than Nine Months from the Date of
Issue
4.7 . Form of Floating Rate Note Due More Than Nine Months from the Date of
Issue
2
<PAGE> 3
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 thereunto duly authorized.
CONSOLIDATED RAIL CORPORATION
By: /s/ Bruce B. Wilson
------------------------
Senior Vice President-Law
DATED: FEBRUARY 7, 1994
3
<PAGE> 4
EXHIBIT INDEX
Exhibit No.
1.1 U.S. Distribution Agreement, dated January 28, 1994, among Consolidated
Rail Corporation, Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Salomon Brothers Inc
4.6 Form of Fixed Rate Note Due More Than Nine Months from the Date of
Issue
4.7. Form of Floating Rate Note Due More Than Nine Months from the Date of
Issue
4
<PAGE> 1
CONSOLIDATED RAIL CORPORATION
$300,000,000
MEDIUM-TERM NOTES
DUE MORE THAN NINE MONTHS FROM DATE OF ISSUE
U.S. DISTRIBUTION AGREEMENT
January 28, 1994
Morgan Stanley & Co. Incorporated
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Salomon Brothers Inc
c/o Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs:
CONSOLIDATED RAIL CORPORATION, a Pennsylvania corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale from
time to time by the Company of up to $300,000,000 aggregate principal amount of
its medium-term notes due more than nine months from date of issue (the
"Notes"). The Notes will be issued under an Indenture dated as of January 15,
1994 (the "Indenture") between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee"), and will have the maturities, interest
rates, redemption provisions, if any, and other terms as set forth in
supplements to the Basic Prospectus referred to below.
The Company hereby appoints each of you as its agent (an "Agent") for the
purpose of soliciting and receiving offers to purchase Notes from the Company
by others (herein referred to as "Agency Transactions") and, on the basis of
the representations and warranties herein contained, but subject to terms and
conditions herein set forth, each of you agrees to use reasonable efforts to
solicit and receive offers to purchase Notes upon terms acceptable to the
Company at such times and in such amounts as the Company shall from time to
time specify. In addition, each of you may also purchase Notes as principal,
subject to Section 2(a) hereof, and, if requested by any of you, the Company
will enter into a Terms Agreement relating to such sale (a "Terms Agreement")
in accordance with the provisions of Section 2(b) hereof (herein referred to as
"Principal Transactions"). In acting under this Agreement and in connection
with the sale of any Notes by the Company (other than Notes sold to any of you
as principal), each of you is acting solely as agent of the Company and does
not assume any obligation towards or relationship of agency or trust with any
purchaser of Notes.
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The Company reserves the right to sell Notes on its own behalf directly or
through affiliates. The Company also reserves the right to appoint one or more
additional persons to perform Agency Transactions or Principal Transactions on
terms the same as those contained in this Agreement. The Company will promptly
notify each Agent of any such appointment, and any such person that performs
Agency Transactions shall receive the commissions set forth in Section 2(a)
hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto, as amended
at the Commencement Date (as hereinafter defined), is hereinafter referred to
as the "Registration Statement". The Company proposes to file with the
Commission from time to time, pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"), supplements to the prospectus included
in the Registration Statement that will describe certain terms of the Notes.
The prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus". The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "Prospectus Supplement") specifically relating to Notes, as filed with,
or transmitted for filing, to the Commission pursuant to Rule 424. As used
herein, the terms "Basic Prospectus" and "Prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used in this Agreement shall include
all documents that are deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date of the Basic Prospectus by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of you as of the Commencement Date, as of each
date on which the Company accepts an offer to purchase Notes (including any
purchase by any of you as principal, pursuant to a Terms Agreement or
otherwise), as of each date the Company issues and sells Notes and as of each
date the Registration Statement or the Basic Prospectus is amended or
supplemented, as follows (it being understood that such representations,
warranties and agreements shall be deemed to relate to the Registration
Statement, the Basic Prospectus and the Prospectus, each as amended or
supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the knowledge of
the Company, threatened by the Commission.
(b) (i) Each document incorporated by reference in the
Prospectus complied or will comply when filed with the Commission in all
material respects with the Exchange Act and the rules and regulations of the
Commission thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any 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
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misleading, (iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 1(b) do not apply (i) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any of you
furnished to the Company in writing by any of you expressly for use therein or
(ii) to that part of the Registration Statement that constitutes the Statement
of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
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.
(d) Each of the subsidiaries whose assets are 5 percent or
more of the consolidated assets of the Company (each, a "Material Subsidiary"),
if any, has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property 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.
(e) Each of this Agreement and any applicable Terms Agreement
has been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, in each case enforceable in accordance
with its terms except as (i) rights to indemnity and contribution hereunder or
thereunder may be limited under applicable law, (ii) the enforceability hereof
and thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (iii) the availability of equitable remedies
may be limited by equitable principles of general applicability.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
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(g) The Notes have been duly authorized and, when the terms of
the Notes have been established and the Notes have been executed by the Company
and completed and authenticated by the Trustee, all in accordance with the
Indenture, and when the Notes have been delivered to and duly paid for by the
purchasers thereof, the Notes will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the Notes,
the Indenture and any applicable Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any Material
Subsidiary, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Indenture and any applicable Terms Agreement, except as provided in 49
C.F.R. Part 1175.2 pursuant to which the Company is exempt from the provisions
of 49 U.S.C. Section 11301 and with which the Company has complied.
(i) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required.
(k) Each of the Company and its Material Subsidiaries, if any,
has all necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
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<PAGE> 5
2. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. In connection with your actions
as Agents hereunder, each of you agrees to use reasonable efforts to solicit
offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct any of you (a "Suspended Agent") to suspend at any time, for any
period of time or permanently, the solicitation of offers to purchase Notes.
Upon receipt of at least one business day's prior notice from the Company, a
Suspended Agent will forthwith suspend solicitations of offers to purchase
Notes from the Company until such time as the Company has advised the Suspended
Agent that such solicitation may be resumed. While such solicitation is
suspended, the Company shall not be required to deliver any certificates,
opinions or letters to the Suspended Agent in accordance with Sections 5(a),
5(b) and 5(c) hereof; provided, however, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension (other
than by a pricing supplement or an amendment or supplement providing solely for
a change in the interest rates, redemption provisions, amortization schedules
or maturities offered on the Notes or for a change the Suspended Agent deems to
be immaterial), the Suspended Agent shall not be required to resume soliciting
offers to purchase Notes until the Company has delivered such certificates,
opinions and letters in accordance with Sections 5(a), 5(b) and 5(c) hereof as
the Suspended Agent may request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the
purchase price of such Note equal to the following percentage of the purchase
price of such Note:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 8 years .600%
From 8 years to less than 9 years .600%
From 9 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
From 30 years and beyond to be negotiated
</TABLE>
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<PAGE> 6
Each of you is authorized to solicit offers to purchase Notes only
in the principal amount of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000. Each Agent shall communicate to the Company,
orally or in writing, each offer to purchase Notes received by such Agent that
in such Agent's judgment should be considered by the Company. The Company
shall have the sole right to accept offers to purchase Notes and may reject any
offer in whole or in part, including any Agent's offers to purchase Notes as
principal pursuant to Section 2(b) hereof. Each Agent shall have the right to
reject any offer to purchase Notes that such Agent considers to be
unacceptable, and any such rejection shall not be deemed a breach of such
Agent's agreements contained herein.
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement and, if
requested by such Agent, the Company will, subject to Section 2(a), enter into
a Terms Agreement that will provide for the sale of such Notes to and the
purchase thereof by such Agent. Each Terms Agreement will be substantially in
the form of Exhibit A hereto, but may take the form of an exchange of any form
of written or oral telecommunication between such Agent and the Company and, if
oral, shall be confirmed in writing by such Agent to the Company.
The commitment of an Agent to purchase Notes as principal, whether
pursuant to a Terms Agreement or otherwise, 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 agreement by an Agent to purchase Notes as principal (whether or not set
forth in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date of such Notes, the
price to be paid to the Company for such Notes, the interest rate and interest
rate formula, if any, applicable to such Notes and any other terms of such
Notes. Each such agreement shall also specify any requirements for officers'
certificates, opinions of counsel and letters from the independent public
accountants of the Company pursuant to Section 4 hereof. A Terms Agreement may
also specify certain provisions relating to the reoffering of such Notes by
such Agent.
Each Terms Agreement shall specify the time and place of delivery
of and payment for such Notes. With respect to each sale of Notes to an Agent
as principal that is not made pursuant to a Terms Agreement, the procedural
details relating to the issue and delivery of such Notes and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined). Each date of delivery of and payment for Notes to be purchased by an
Agent as principal, whether pursuant to a Terms Agreement or otherwise, is
referred to herein as a "Settlement Date".
An Agent may sell Notes it has purchased as principal to other
dealers for resale to investors and other purchasers, and may allow any portion
of the discount received in connection with such purchase from the Company to
such dealers.
(c) Administrative Procedures. Each Agent and the Company
agree to perform the respective duties and obligations specifically provided to
be performed in the Medium-Term Notes Administrative Procedures (attached
hereto as Exhibit B) (the
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"Administrative Procedures"), as amended from time to time. The Administrative
Procedures may be amended only by written agreement of the Company and each
Agent.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to your respective
obligations to begin soliciting offers to purchase Notes as Agents of the
Company shall be delivered at the office of Shearman & Sterling, your counsel,
not later than 3:00 p.m., New York time, on the date hereof, or at such other
time and/or place as Morgan Stanley & Co. Incorporated ("Morgan Stanley") and
the Company may agree upon in writing, but in no event later than the day prior
to (i) the date on which any Agent first begins soliciting offers to purchase
Notes or (ii) the first date on which the Company accepts any offer by any
Agent to purchase Notes as principal (the "Commencement Date").
3. Agreements. The Company agrees with each of you that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file
any Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to each of
you a copy thereof for your respective review and will not file any such
proposed supplement or amendment to which any of you reasonably object;
provided, however, that the foregoing requirement shall not apply to any of the
Company's periodic filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which filings
the Company will cause to be delivered to each of you promptly after being
filed with the Commission. Subject to the foregoing sentence, the Company will
promptly cause each Prospectus Supplement to be filed with or transmitted for
filing to the Commission in accordance with Rule 424(b). The Company will
promptly advise each of you (i) of the filing of any amendment or supplement to
the Basic Prospectus, (ii) of the filing and effectiveness of any amendment to
the Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Basic Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
notice of suspension of qualification and, if issued, to obtain as soon as
possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any document
incorporated by reference in the Prospectus, no Agent shall be obligated to
solicit offers to purchase Notes so long as such Agent is not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the light
of the
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<PAGE> 8
circumstances when the Prospectus, as then amended or supplemented, is
delivered to a purchaser, not misleading, or if, in the opinion of any Agent or
in the opinion of the Company, it is necessary at any time to amend or
supplement the Prospectus, as then amended or supplemented, to comply with
applicable law, the Company will immediately notify each of you by telephone
(with confirmation in writing) to suspend solicitation of offers to purchase
Notes and, if so notified by the Company, each of you shall forthwith suspend
such solicitation and cease using the Prospectus as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus as then amended or supplemented, it shall
so advise each of you promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to each of you in such quantities as each of you may reasonably
request. If such amendment or supplement and any documents, certificates,
opinions and letters furnished to each of you pursuant to paragraph (e) below
and Sections 5(a), 5(b) and 5(c) hereof in connection with the preparation and
filing of such amendment or supplement are satisfactory in all respects to each
of you, upon the filing of such amendment or supplement with the Commission or
upon the effectiveness of an amendment to the Registration Statement, each of
you will resume the solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this Section 3(b), until the
distribution of any Notes any Agent may own as principal has been completed, if
any event described above in this paragraph (b) occurs, the Company will, at
its own expense, forthwith prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented, satisfactory in all respects to any
such Agent, and will supply such amended or supplemented Prospectus to such
Agent in such quantities as such Agent may reasonably request. If such
amendment or supplement and any documents, certificates, opinions and letters
furnished to any such Agent pursuant to paragraph (e) below and Sections 5(a),
5(b) and 5(c) hereof in connection with the preparation and filing of such
amendment or supplement are satisfactory in all respects to such Agent, upon
the filing of such amendment or supplement with the Commission or upon the
effectiveness of an amendment to the Registration Statement, such Agent may
resume its resale of Notes as principal.
(c) The Company will make generally available to its security
holders and to each of you as soon as practicable earning statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder, covering twelve-month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's
fiscal year, such earning statement shall be made available not later than 90
days after the close of the period covered thereby and in all other cases shall
be made available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish to each Agent, without charge,
one copy of the Registration Statement, including exhibits and all amendments
thereto (unless previously furnished), and during the period mentioned in
Section 3(b) above, as many copies of the
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<PAGE> 9
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as such Agent may reasonably request.
(e) During the term of this Agreement, the Company shall
furnish to each Agent such relevant documents and certificates of officers of
the Company relating to the business, operations and affairs of the Company,
the Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as such Agent may from time to time
reasonably request and shall notify each Agent promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
(f) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation
and filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the printing and delivery
to each of you in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Basic Prospectus
and any amendments or supplements thereto, (v) the printing and delivery to
each of you of copies of the Indenture, (vi) any fees charged by rating
agencies for the rating of the Notes, (vii) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc., (viii) the fees and disbursements of special counsel to all
Agents incurred in connection with the offering and sale of the Notes,
including any opinions to be rendered by such counsel thereunder, and (ix) any
out-of-pocket expenses incurred by any of you, including any advertising
expenses incurred by any of you with the approval of the Company.
(g) Subject to the prior agreement by the Company and any
Agent at the time of the purchase of Notes by such Agent as principal, between
the date of any such agreement to purchase Notes as principal and the
Settlement Date with respect to such agreement, the Company will not, without
such Agent's prior consent, offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company substantially similar to the Notes (other
than (i) the Notes that are to be sold pursuant to such agreement and (ii)
commercial paper issued in the ordinary course of business or other securities
with maturities of less than 270 days), except as may otherwise be provided in
such agreement.
(h) The Company has complied and will comply with all of the
provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida
Statutes, and all regulations promulgated thereunder relating to issuers doing
business with Cuba.
4. Conditions of the Obligations of the Agents. Your respective
obligations to solicit
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<PAGE> 10
offers to purchase Notes as agents of the Company, your respective obligations
to purchase Notes as principal pursuant to any Terms Agreement or otherwise and
the obligation of any other purchaser to purchase Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in
each certificate furnished pursuant to the provisions hereof and to the
performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed (in the case of your
respective obligations to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of your respective obligations or any other
purchaser's obligations, to purchase Notes, at the time the Company accepts the
offer to purchase such Notes and at the time of purchase) and (in each case) to
the following additional conditions precedent when and as specified:
(a) At the time of such solicitation or the time of such
purchase, as the case may be:
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the Registration
Statement, as then amended or supplemented, that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
market the Notes on the terms and in the manner contemplated in the
Prospectus except, in the case of any purchase of Notes, as disclosed to
you in writing by the Company before it accepted the offer to purchase such
Notes.
(ii) There shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be, the
New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market, (C) declaration of a general moratorium
on commercial banking activities in New York by either Federal or New York
State authorities or (D) any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your
judgment, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or together
with any other such event, makes it, in your judgment, impracticable to
market the Notes on the terms and in the manner contemplated by the
Prospectus, as amended or supplemented, except, in the case of any purchase
of Notes, for any such event occurring before the Company accepted the
offer to purchase such Notes.
(iii) There shall not have been any downgrading, nor any
notice given of any intended or potential downgrading or of a possible
change that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act, except, in the case of
any purchase of Notes, as disclosed to you in writing by the Company before
it accepted the offer to purchase
-10-
<PAGE> 11
such Notes.
(b) On the Commencement Date and, if called for by any
agreement by you to purchase Notes as principal, on the corresponding
Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of (A) the Vice
President and General Counsel of the Company, covering the matters in
subparagraphs (A) through (I) and (K) below, and (B) independent counsel for
the Company, covering the matters in subparagraph (J) below, to the effect
that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus, as amended or
supplemented, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property 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;
(B) each of the Material Subsidiaries of the Company, if
any, has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus, as amended or supplemented, and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or to be in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries, if
any, has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, as amended or supplemented, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Terms
Agreement has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, in each case enforceable in
accordance with its terms except as (i) rights to indemnity and contribution
hereunder or thereunder may be limited under applicable law, (ii) the
enforceability hereof and thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (iii) the availability
of equitable remedies may be limited by equitable principles of general
applicability;
(E) the Indenture has been duly qualified under the Trust
Indenture Act
-11-
<PAGE> 12
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) as
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(F) the Notes have been duly authorized and, when the
terms of the Notes have been established and the Notes have been executed by
the Company and completed and authenticated by the Trustee, all in accordance
with the Indenture, and when the Notes have been delivered to and duly paid for
by the purchasers thereof, the Notes will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability;
(G) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the Notes,
the Indenture and any applicable Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any Material Subsidiary, and no consent, approval,
authorization or order of or qualification with any governmental body or agency
is required for the performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Terms Agreement, except
as provided in 49 C.F.R. Part 1175.2 pursuant to which the Company is exempt
from the provisions of 49 U.S.C. Section 11301 and with which the Company has
complied;
(H) the statements in the Basic Prospectus, as amended or
supplemented, under the captions "Description of Debt Securities" and "Plan of
Distribution" in such Prospectus, and the statements in the Prospectus
Supplement under the captions "Description of Notes" and "Plan of Distribution"
in such Prospectus Supplement, and in "Item 3 - Legal Proceedings" of the
Company's most recent annual report on Form 10-K incorporated by reference in
the Prospectus, and Item I of Part II of the Company's quarterly reports on
Form 10-Q, if any, filed since the most recent annual report on Form 10-K
incorporated by reference in the Prospectus, in each case and insofar as such
statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the matters
referred to therein;
(I) after due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that is required to be described
in the Registration Statement or the Prospectus, as amended or supplemented,
and is not so described or of any statute, regulation, contract or other
document that is required to be described in the Registration Statement or the
Prospectus, as amended or
-12-
<PAGE> 13
supplemented, or to be filed as an exhibit to such Registration Statement that
is not described or filed as required;
(J) such counsel is of the opinion ascribed to it in the
Prospectus, as amended or supplemented, under the caption "Limitations on
Issuance of Bearer Debt Securities" and in the Prospectus Supplement under the
caption "United States Federal Taxation"; and
(K) such counsel (1) is of the opinion that each document
incorporated by reference in the Prospectus, as amended or supplemented (except
for financial statements and other financial or statistical information
included therein as to which such counsel need not express any opinion),
complied as to form when filed with the Commission in all material respects
with the Exchange Act and the rules and regulations of the Commission
thereunder, (2) believes that (except for financial statements and other
financial or statistical information as to which such counsel need not express
any belief and except for that part of the Registration Statement that
constitutes the Form T-l heretofore referred to) each part of the Registration
Statement, as amended, if applicable, when such part became effective, did not
contain any 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, (3) is of the opinion that the Registration Statement and
Prospectus, as amended or supplemented, if applicable (except for financial
statements and other financial or statistical information included therein as
to which such counsel need not express any opinion), comply as to form in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder and (4) believes that (except for financial statements
and other financial or statistical information as to which such counsel need
not express any belief) the Prospectus, as amended or supplemented, if
applicable, as of the date such opinion is delivered, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(ii) The opinion, dated as of such date, of Shearman &
Sterling, your special counsel, covering the matters in subparagraphs (D)
through (F), (H) (with respect to statements in the Prospectus, as amended or
supplemented, under the captions "Description of Debt Securities" and "Plan of
Distribution," and in the Prospectus Supplement under the captions "Description
of Notes" and "Plan of Distribution"), (J) and (K) in paragraph (b)(i) above.
With respect to subparagraph (K) of paragraph (b)(i) above,
Shearman & Sterling may state that its opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (but not including documents
incorporated herein by reference), but are without independent check or
verification except as specified.
(c) On the Commencement Date and, if called for by any
agreement by you to
-13-
<PAGE> 14
purchase Notes as principal, on the corresponding Settlement Date, you shall
have received a certificate, dated such Commencement Date or Settlement Date,
as the case may be, signed by an executive officer of the Company to the effect
that (i) no stop order suspending the effectiveness of the Registration
Statement in the form in which it was declared effective by the Commission on
August 10, 1993 is in effect and no proceedings for that purpose are pending
or, to the knowledge of such officer or the Company's knowledge, are
threatened; (ii) there shall not have been any downgrading, nor has the Company
received any notice of any intended or potential downgrading or any notice that
does not indicate the direction of a possible change, in the rating accorded
any of the Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act, except in the case of any purchase of Notes, as
disclosed to you in writing by the Company before it accepted the offer to
Purchase such Notes; (iii) the representations and warranties of the Company
contained herein are true and correct; (iv) there shall not have occurred any
change, or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement, as amended or supplemented, that in your judgment is
material and adverse, except in the case of any purchase of Notes, as disclosed
to you in writing by the Company before it accepted the offer to purchase such
Notes; and (v) the Company has performed or complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied on
or before the date of such certificate. The officer signing and delivering
such certificate may rely upon the best of his knowledge as to any proceedings
threatened.
(d) On the Commencement Date and, if called for by any
agreement by you to purchase Notes as principal, on the corresponding
Settlement Date, the Company's independent public accountants shall have
furnished to you a letter or letters, dated as of the Commencement Date or such
Settlement Date, as the case may be, in form and substance satisfactory to you
containing statements and information of the type ordinarily included in
accountant's "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference in the Registration Statement and the Prospectus, as amended or
supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
a pricing supplement or an amendment or supplement providing solely for a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change each of you deem to be
immaterial), the Company will deliver or cause to be delivered forthwith to
each of you a certificate signed by an executive officer of the Company, dated
the date of such amendment or supplement, as the case may be, in form
reasonably satisfactory to each of you, of the same tenor as the certificate
referred to in Section 4(c) hereof relating to the Registration Statement or
the Prospectus as amended and supplemented to the time of delivery of such
-14-
<PAGE> 15
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company shall furnish or cause to be furnished forthwith to
each of you a written opinion of the Vice President and General Counsel of the
Company and independent counsel for the Company, unless you shall inform the
Company that such opinions need not be furnished. Any such opinion shall be
dated the date of such amendment or supplement, as the case may be, shall be in
a form satisfactory to each of you and shall be of the same tenor as the
opinion of such counsel referred to in Section 4(b)(i) hereof, but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of such opinion,
counsel last furnishing such an opinion to each of you may furnish to each of
you a letter to the effect that each of you may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such letter).
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company shall
cause its independent public accountants forthwith to furnish each of you with
a letter, dated the date of such amendment or supplement, as the case may be,
in form satisfactory to each of you, of the same tenor as the letter referred
to in Section 4(d) hereof, with regard to the amended or supplemental financial
information included or incorporated by reference in the Registration Statement
or the Prospectus as amended or supplemented to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each of you and each person, if any, who controls
any of you within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages or liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or in any
amendment thereof or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except (i) insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Agent
furnished to the Company in writing by such Agent expressly for use therein and
(ii) such indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Agent (or any person controlling any Agent) if the person
asserting any such loss, claim, damage or liability did not receive a copy of
the Prospectus (or the Prospectus as amended or supplemented) at or prior to
the confirmation of the sale of the Notes to such person in any case where such
delivery is required by the Securities Act and the untrue statement or omission
of a material fact contained in such preliminary prospectus was corrected in
the Prospectus (or the Prospectus as amended or supplemented).
-15-
<PAGE> 16
(b) Each of you agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each Agent, but only with reference to information relating to such Agent
furnished to the Company in writing by such Agent expressly for use in the
Registration Statement or the Prospectus or any amendments or supplements
thereto or any preliminary prospectus.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing, and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. 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 and that all such fees and expenses
shall be reimbursed as they are incurred. The firm referred to in the second
preceding sentence shall be designated in writing by Morgan Stanley (or, if
Morgan Stanley is not a party, and could not be made a party, to such
proceeding, any other Agent) in the case of parties indemnified pursuant to
paragraph (a) above and by the Company in the case of parties indemnified
pursuant to paragraph (b) above. 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 plaintiff,
the indemnifying party agrees to indemnify any indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of an indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which such indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
(b) of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses,
-16-
<PAGE> 17
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
of your participation as Agent in the offering of the Notes that gave rise to
such losses, claims, damages or liabilities (a "Participating Agent") on the
other from the offering of such Notes or (ii) if the allocation provided by
clause (i) 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 each
Participating Agent on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and each Participating Agent on the other in connection
with the offering of such Notes shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Notes (before
deducting expenses) received by the Company bear to the total discounts and
commissions received by such Participating Agent in respect thereof. The
relative fault of the Company on the one hand and each Participating Agent on
the other shall be determined by reference to, among other things, whether the
untrue or allegedly untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by such Participating Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
If more than one of you is a Participating Agent in respect of a
proceeding, each Participating Agent's obligation to contribute pursuant to
this Section 6 shall be several and not joint, and shall be in the proportion
that the principal amount of the Notes that are the subject of such proceeding
and that were offered and sold through such Participating Agent bears to the
aggregate principal amount of the Notes that are the subject of such
proceeding.
(e) The Company and each of you agree that it would not be just
or equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending such action or claim. Notwithstanding the
provisions of this Section 6, none of you individually shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes referred to in paragraph (d) above that were offered and sold through
you individually exceeds the amount of any damages that you individually have
otherwise been required to pay by reason of such untrue or allegedly untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section ll(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7. Position of the Agents. In soliciting offers to purchase the
Notes, each of you is
-17-
<PAGE> 18
acting solely as agent for the Company, and not as principal, and does not
assume any obligation toward or relationship of agency or trust with any
purchaser of Notes. Each of you shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by you and accepted by the Company, but none of you
shall have any 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
hold the Agent who solicited the purchase of such Notes harmless against any
loss, claim, damage or liability arising from or as a result of such default
and shall, in particular, pay to such Agent the commission such Agent would
have received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time either
by the Company or by any of you upon the giving of written notice of such
termination to the other party hereto; provided, however, that such termination
shall be effective only with respect to an Agent who has given or received such
written notice. Any Terms Agreement between the Company and any Agent shall be
subject to termination in such Agent's absolute discretion on the terms set
forth or incorporated by reference therein. The termination of this Agreement
shall not require termination of any agreement by any of you to purchase Notes
as principal, and the termination of any such agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a) hereof, the last two sentences of
Section 3(b) hereof and all of Sections 3(c), 3(f), 6, 7, 9 and 13 hereof shall
survive; provided that, if at the time of termination an offer to purchase
Notes has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Notes has not occurred, the provisions of
Sections 2(c), 3(a), 3(b), 3(e), 3(g) and 4 hereof shall also survive. If any
Terms Agreement is terminated, the provisions of Sections 2(c), 3, 4, 6, 9 and
13 hereof (which shall have been incorporated by reference in such Terms
Agreement) shall survive.
9. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and any of you set forth in or made
pursuant to this Agreement or any agreement by any of you to purchase Notes as
principal will remain in full force and effect, regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of any of you or the Company or any of the officers, directors or controlling
persons referred to in Section 6 hereof and delivery of and payment for the
Notes.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Morgan Stanley, will be mailed,
delivered or telefaxed and confirmed to Morgan Stanley & Co. Incorporated at
1251 Avenue of the Americas, New York, New York 10020, Attention: Manager,
Credit Department, telephone number (212) 703-4000, facsimile number (212)
703-6476, with a copy to Morgan Stanley & Co. Incorporated at 1221 Avenue of
the Americas, New York, New York 10020, Attention: Managing Director, Short
and Medium-Term Finance Department, telephone number (212) 296-7000, facsimile
(212) 944-0752 and, if sent to Merrill Lynch & Co., will be mailed, delivered
or telefaxed and confirmed to Merrill Lynch & Co. at Merrill Lynch World
Headquarters, World Financial Center, North Tower, 10th Floor, 250 Vesey
Street, New York, New York, 10281-1323, Attention: MTN
-18-
<PAGE> 19
Product Management, telephone number (212) 449-7476, facsimile number (212)
449-2234 and, if sent to Salomon Brothers Inc, will be mailed, delivered or
telefaxed and confirmed to Salomon Brothers Inc at 7 World Trade Center, 31st
Floor, New York, New York 10048, Attention: Medium-Term Note Group, telephone
number (212) 783-5897, facsimile number (212) 783-3350 or, if sent to the
Company, will be mailed, delivered or telefaxed and confirmed to it at Two
Commerce Square, 2001 Market Street, Philadelphia, Pennsylvania 19101- 1425,
Attention: Director-Project Financing.
11. Successors. This Agreement and any Terms Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 hereof and the purchasers of Notes (to the extent expressly provided
in Section 4 hereof), and no other person will have any right or obligation
hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
-19-
<PAGE> 20
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
CONSOLIDATED RAIL CORPORATION
By:
------------------------------
Thomas J. McFadden
Director - Project Financing
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
MORGAN STANLEY & CO. INCORPORATED
By
-------------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
-------------------------------------
Name:
Title:
SALOMON BROTHERS INC
By
-------------------------------------
Name:
Title:
-20-
<PAGE> 21
EXHIBIT A
CONSOLIDATED RAIL CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
-----------, 19--
Consolidated Rail Corporation
Two Commerce Square
Philadelphia, PA 19101-1425
Attn: Director-Project Financing
RE: DISTRIBUTION AGREEMENT DATED JANUARY 28, 1994
(THE "DISTRIBUTION AGREEMENT")
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes: $
<TABLE>
<CAPTION>
Floating
Fixed Rate Rate
All Notes Notes Notes
- --------- ----- -----
<S> <C> <C>
Purchase Interest Base
price: rate: rate:
Price to public: Applicability of Index
modified payment maturity:
upon acceleration:
Settlement date and time: Amortization schedule: Spread:
Place of delivery: Spread
multiplier:
Specified currency: Initial
interest rate:
Maturity date:
Interest reset
dates:
</TABLE>
-21-
<PAGE> 22
<TABLE>
<S> <C>
Initial interest
reset date:
Amount of OID:
Initial accrual Maximum interest
period OID: rate:
Original yield to maturity: Minimum interest
rate:
Initial redemption date: Interest reset period:
Initial redemption percentage: Interest payment
dates:
Annual redemption percentage Calculation agent:
decrease:
Applicability of modified Alternate rate
payment upon acceleration: event spread:
Other terms:
</TABLE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 8 through
13 of the Distribution Agreement and the related definitions are incorporated
by reference herein and shall be deemed to have the same force and effect as if
set forth in full herein.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Distribution Agreement will be required:
[NAME OF AGENT]
By:
---------------------------------
Name:
Title:
Accepted:
CONSOLIDATED RAIL CORPORATION
By:
------------------------------
Name:
Title:
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<PAGE> 23
CONSOLIDATED RAIL CORPORATION
MEDIUM-TERM NOTES, ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and specific terms
of the offering of Medium-Term Notes (the "Notes") to be issued on a continuous
basis by Consolidated Rail Corporation (the "Company") pursuant to the U.S.
Distribution Agreement, dated as of January 28, 1994 (the "Distribution
Agreement") among the Company and Morgan Stanley & Co. Incorporated, Salomon
Brothers Inc and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Agents"). In the Distribution Agreement, each Agent has
agreed to use its reasonable efforts to solicit purchases of the Notes. Each
Agent, as principal, may purchase Notes for its own account and, if requested
by an Agent, the Company and such Agent will enter into a terms agreement, as
contemplated by the Distribution Agreement.
The Notes will be issued pursuant to the provisions of an Indenture
dated as of January 15, 1994 (as it may be supplemented or amended from time to
time, the "Indenture"), between the Company and The First National Bank of
Chicago, as trustee ("FNBC"). FNBC will be the Registrar, the Calculation
Agent, the Exchange Rate Agent, Authentication Agent and Paying Agent for the
Notes and will perform the duties specified herein. Notes will bear interest
at a fixed rate established by the Company at the date of issue of such Notes
(the "Fixed Rate Notes"), which may be zero in the case of certain original
issue discount notes (the "OID Notes"), or at a floating rate as set forth
therein and specified in the applicable Pricing Supplement (the "Floating Rate
Notes"). Fixed Rate Notes may pay a level amount in respect of both interest
and principal amortized over the life of the Notes (the "Amortizing Notes").
The Notes will be issued in U.S. dollars. Each Note will be represented by
either a Global Security (as defined below) delivered to FNBC, 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").
Except in limited circumstances, an owner of a Book-Entry Note will not be
entitled to receive a Certificated Note.
<PAGE> 24
Book-Entry Notes, which may only be denominated and payable in U.S.
dollars, will be issued in accordance with the administrative procedures set
forth in Part I hereof as they may subsequently be amended as the result of
changes in DTC's operating procedures, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indenture or the Notes
shall be used herein as therein defined .
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, FNBC 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 FNBC to DTC, dated as of the date hereof (the "Letter of
Representations"), and a Medium-Term Note Certificate Agreement between FNBC
and DTC, dated as of May 26, 1989, and its obligations as a participant in DTC,
including DTC's Same Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue a single global security in
fully registered form without coupons (a "Global
Security") representing up to $150,000,000 principal
amount of all such Notes that have the same Maturity
Date, redemption provisions, Interest Payment Dates,
Interest Period, Original Issue Date, original issue
discount provisions (if any) and, in the case of
Fixed Rate Notes, Interest Rate and amortization
schedule (if any) or, in the case of Floating Rate
Notes, Initial Interest Rate, Base Rate, Index
Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate (if
any) and, in each case, any other relevant terms
(collectively, "Terms"). Each Global Security will
be dated and issued as of the date of its
authentication by FNBC. Each Global Security will
bear an "Interest Accrual Date," which will be (i)
with respect to an original Global
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<PAGE> 25
Security (or any portion thereof), its original
issuance date and (ii) with respect to any Global
Security (or any portion thereof) issued subsequently
upon exchange of a Global Security, or in lieu of a
destroyed, lost or stolen Global Security, the most
recent Interest Payment Date to which interest has
been paid or duly provided for on the predecessor
Global Security or Securities (or, if no such payment
or provision has been made, the original issuance
date of the predecessor Global Security), regardless
of the date of authentication of such subsequently
issued Global Security. Book-Entry Notes may only be
denominated and payable in U.S. dollars. No Global
Security will represent any Certificated Note.
Identification The Company has arranged with the CUSIP Service
Numbers: Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of a series of
CUSIP numbers (including tranche numbers) for each of
the Notes, which series consists of approximately 900
CUSIP numbers and relates to Global Securities
representing the Book-Entry Notes. The Company has
obtained from the CUSIP Service Bureau a written list
of the series of reserved CUSIP numbers and has
delivered to FNBC and DTC the written list of 900
CUSIP numbers of each such series. FNBC 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 FNBC has assigned to Global Securities.
At any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Securities, FNBC
shall so advise the Company 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 Company shall deliver a
list of such additional CUSIP numbers to FNBC and
DTC.
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<PAGE> 26
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 beneficial owner in 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 accompanied 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.
Exchanges: FNBC 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
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date,
occurring 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 to be assigned to such replacement
Global Security. Upon receipt of such a notice, DTC
will send to its Participants (including FNBC) a
written reorganization notice to the effect that such
exchange will occur on such date. Prior to the
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<PAGE> 27
specified exchange date, FNBC 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,
FNBC will exchange such Global Securities for a
single Global Security bearing the new CUSIP number
and a new Interest Accrual Date, and the CUSIP
numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $150,000,000 in
aggregate principal amount, one Global Security will
be authenticated and issued to represent each
$150,000,000 principal amount of the exchanged Global
Security and an additional Global Security will be
authenticated and issued to represent any remaining
principal amount of such Global Securities (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a date more than
nine months after the settlement date for such Note.
Notice of FNBC will give notice to DTC prior to each Redemption
Redemption Dates: Date (as specified in the Note), if any, at the time
and in the manner set forth in the Letter of
Representations.
Denominations: Book-Entry Notes will be issued in principal amounts
of $1000 or any amount in excess thereof that is an
integral multiple of $1,000. Global Securities will
be denominated in principal amounts not in excess of
$150,000,000. If one or more Book-Entry Notes having
an aggregate principal amount in excess of
$150,000,000 would, but for the preceding sentence,
be represented by a single Global Security, then one
Global Security will be issued to represent each
$150,000,000 principal amount of such Book-Entry Note
or Notes and an additional Global Security will be
issued to represent any remaining
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<PAGE> 28
principal amount of such Book-Entry Note or Notes.
In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Interest: General. Interest on each Book-Entry Note will accrue
from the Interest Accrual Date of the Global Security
representing such Note. Each payment of interest on
a Book-Entry Note will include interest accrued to
but excluding the Interest Payment Date; provided
that in the case of Floating Rate Notes that reset
daily or weekly, interest payments will include
interest accrued to and including the Record Date
immediately preceding the Interest Payment Date,
except that at maturity or earlier redemption, the
interest payable will include interest accrued to,
but excluding, the maturity date or date of
redemption, as the case may be. Interest payable at
the maturity or upon redemption of a Book-Entry Note
will be payable to the person to whom the principal
of such Note is payable. Standard & Poor's
Corporation 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 Corporation.
Record Date. The Record Date with respect to any
Interest Payment Date shall be the date fifteen
calendar days immediately preceding such Interest
Payment Date.
Fixed Rate Book-Entry Notes. Interest payments on
Fixed Rate Book-Entry Notes other than Amortizing
Notes will be made semiannually on March 1 and
September 1 of each year and at maturity and
Book-Entry Amortizing Notes will pay principal and
interest semiannually each March 1 and September 1,
or quarterly each March 1, June 1, September 1 and
December 1, and
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<PAGE> 29
at maturity;provided, however, that in the case of a
Fixed Rate Book-Entry Note issued between a Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Floating Rate Book-Entry Notes. Interest payments
will be made on Floating Rate Book-Entry Notes
monthly, quarterly, semiannually or annually. Unless
otherwise agreed upon, interest will be payable, in
the case of Floating Rate Book-Entry Notes with a
daily, weekly or monthly Interest Reset Date, on the
third Wednesday of each month or on the third
Wednesday of March, June, September and December, as
specified pursuant to Settlement Procedure "A" below;
in the case of Notes with a quarterly Interest Reset
Date, on the third Wednesday of March, June,
September and December of each year; in the case of
Notes with a semiannual Interest Reset Date, on the
third Wednesday of the two months specified pursuant
to Settlement Procedure "A" below; and in the case of
Notes with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below;provided, however,
that if an Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that is not
a Business Day with respect to such Floating Rate
Book-Entry Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Book-Entry Notes, except in the case of
a LIBOR Note if such Business Day is in the next
succeeding calendar month, such Interest Payment Date
will be the immediately preceding Business Day; and
provided, further, that in the case of a Floating
Rate Book-Entry Note issued between a Record Date and
an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
-7-
<PAGE> 30
Notice of Interest Payment and Record Dates. On the
first Business Day of January, April, July and
October of each year, FNBC will deliver to the
Company and DTC a written list of Record Dates and
Interest Payment Dates that will occur with respect
to Book-Entry Notes during the three-month period
beginning on such first Business Day.
Calculation of Fixed Rate Book-Entry Notes. Interest on Fixed Rate
Interest: Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a year of
twelve thirty-day months.
Floating Rate Book-Entry Notes. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. Interest on Floating
Rate Book-Entry Notes will be calculated on the basis
of actual days elapsed and a year of 360 days, except
that in the case of Treasury Rate Notes, interest
will be calculated on the basis of the actual number
of days in the year.
Payments of Payments of Interest. Promptly after each Record
Principal and Date, FNBC will deliver to the Company and DTC a
Interest: written notice specifying by CUSIP number the amount
of interest to be paid on each Global Security (other
than an Amortizing Note) 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
such Global Security on such Interest Payment Date by
reference to the daily bond reports published by
Standard & Poor's Corporation. In the case of
Amortizing Notes, FNBC will provide separate written
notice to DTC prior to each Interest Payment Date at
the times and in the manner set forth in the Letter
of Representations. The Company will pay to FNBC, as
paying agent, the total amount of interest due on
such Interest Payment Date (and, in the
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<PAGE> 31
case of an Amortizing Note, principal and interest)
(other than at maturity), and FNBC will pay such
amount to DTC at the times and in the manner set
forth below under "Manner of Payment." If any
Interest Payment Date for a Fixed Rate Book-Entry
Note is not a Business Day, the payment due on such
day shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the
period from and after such Interest Payment Date.
Payments at Maturity or Upon Redemption. On or about
the first Business Day of each month, FNBC will
deliver to the Company and DTC a written list of
principal and interest to be paid on each Global
Security (other than an Amortizing Note) maturing
either at maturity or on a redemption date in the
following month. The Company 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 Date or
redemption date of such Global Security. In the case
of Amortizing Notes, FNBC will provide separate
written notice to DTC prior to each Interest Payment
Date at the times and in the manner set forth in the
Letter of Representations. The Company will pay to
FNBC, as the paying agent, the principal amount of
such Global Security, together with interest due at
such Maturity Date or redemption date. FNBC will pay
such amounts to DTC at the times and in the manner
set forth below under "Manner of Payment." If any
Maturity Date or redemption date of a Global Security
representing Book-Entry Notes is not a Business Day,
the payment due on such day shall be made on the next
succeeding Business Day and, in the case of Fixed
Rate Notes, no interest shall accrue on such payment
for the period from and after such Maturity Date or
redemption date. Promptly after payment to DTC of
the principal and interest due on the Maturity Date
or redemption date of such Global Security, FNBC will
cancel such Global
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<PAGE> 32
Security in accordance with the terms of the
Indenture and deliver it to the Company with a
certificate of cancellation .
Manner of Payment. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at maturity or upon redemption shall
be paid by the Company to FNBC in funds available for
immediate use by FNBC 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 FNBC
to withdraw funds from an account maintained by the
Company at FNBC. The Company will confirm such
instructions in writing to FNBC. Prior to 10 A.M.
(New York City time) on each Maturity Date or
redemption date or as soon as possible thereafter,
FNBC will pay by separate wire transfer (using
Fedwire message entry instructions in a form
previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified
by DTC, in funds available for immediate use by DTC,
each payment of interest or principal (together with
interest thereon) due on Global Securities on any
Maturity Date or redemption date. On each Interest
Payment Date, interest payments (and, in the case of
Amortizing Notes, interest and principal payments)
shall be made to DTC in same day funds in accordance
with existing arrangements between FNBC and DTC.
Thereafter on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect such amounts in funds available for immediate
use to the respective Participants in whose names the
Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system
maintained by DTC. Neither the Company nor FNBC
shall have any responsibility or liability for the
payment by DTC to such Participants of the principal
of and interest on the Book-Entry Notes.
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<PAGE> 33
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 directly to the beneficial owner of such
Note.
Preparation of If any order to purchase a Book-Entry Note is
Pricing Supplement: accepted by or on behalf of the Company, the Company
will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph
of Rule 424(b) under the Act, and will deliver the
number of copies of such Pricing Supplement to each
Agent shall request as soon as practicable, but in no
event later than 3:00 PM on the Business Day
following the trade date at the following
locations: Morgan Stanley Incorporated, 1221 Avenue
of the Americas, 4th Floor, NY, NY 10020,
212-296- 5830 (FAX) 212-764-7490; Merrill Lynch &
Co. - Tritech Services, 4 Corporate Place,
Corporate Park 287, Piscataway, NJ 08854
908-878-6525/6526/6527, (FAX) 908-878-6530, with a
copy to Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center,
North Tower, 10th Floor, NY NY 10281-1310, Attn: MTN
Product Department, 212-449-7476, (FAX) 212-449-2234;
and Salomon Brothers Inc, 8800 Hidden River Parkway,
Tampa, FL 33637, Attn: Enrico Castro, 813-558-7165,
(FAX) 813-558-4123. Each Agent will cause such
Pricing Supplement to be delivered to the purchaser
of a Note, the purchase of which was solicited by
such Agent.
In each instance that a Pricing Supplement is
prepared, each Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to
which they are
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<PAGE> 34
attached (other than those retained for files), will
be destroyed.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Note shall constitute "settlement"
with respect such Note. All orders accepted by the
Company will be settled on the fifth Business Day
pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to
settlement on another day which shall be no earlier
than the next Business Day.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Notes sold by the Company to or through any Agent
(except pursuant to a Terms Agreement, as defined in
the Distribution Agreement) shall be as follows:
A. Such Agent will advise the Company by
telephone that such Note is a Book-Entry Note
and of the following settlement information:
1. Principal amount of Notes to be
purchased.
2. Maturity Date.
3. In the case of a Fixed Rate
Book-Entry Note, the interest rate
and whether such Note is an
Amortizing Note, or in the case of a
Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at
such time), Base Rate, Index
Maturity, Interest Reset Period,
Initial Interest Reset Date,
Interest Reset Dates, Interest
Period, Spread or Spread Multiplier
(if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if
any), the Alternate Rate Event
Spread (if any) and the
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<PAGE> 35
applicability of the Modified
Following Banking Day Convention.
4. Interest Payment Dates.
5. Redemption provisions, if any.
6. Issue date.
7. Settlement date.
8. Issue Price.
9. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
10. Whether the Note is an OID Note, and
if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual period
OID and the applicability of
Modified Payment upon Acceleration.
11. Any other applicable Terms.
B. The Company will advise FNBC by telephone or
electronic transmission (confirmed in writing
at any time on the same date) of the
information set forth in Settlement Procedure
"A" above. FNBC will then assign a CUSIP
number to the Global Security representing
such Note and will notify the Company and
such Agent of such CUSIP number by telephone
as soon as practicable.
C. FNBC will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement
information to DTC, such Agent and Standard &
Poor's Corporation:
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<PAGE> 36
1. The information set forth in
Settlement Procedure "A".
2. The Initial Interest Payment Date
for such Note, the number of days by
which such date succeeds the related
DTC Record Date (which, in the case
of Floating Rate Notes which reset
daily or weekly, shall be the date
five calendar days immediately
preceding the applicable Interest
Payment Date and, in the case of all
other Notes, shall be the Record
Date as defined in the Note) and the
amount of interest payable on such
Initial Interest Payment Date.
3. The CUSIP number of the Global
Security representing such Note.
4. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
5. Whether such Note is an Amortizing
Note (by appropriate notation in the
comments field of DTC's Participant
Terminal System).
D. FNBC will complete and authenticate the
Global Security representing such Note.
E. DTC will credit such Note to FNBC's
participant account at DTC.
F. FNBC will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit such Note to FNBC's
participant account and credit such Note to
such Agent's participant account and (ii)
debit such Agent's
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<PAGE> 37
settlement account and credit FNBC's
settlement account for an amount equal to the
price of such Note less such Agent's
commission, if any. The entry of such a
deliver order shall constitute a
representation and warranty by FNBC to DTC
that (a) the Global Security representing
such Book- Entry Note has been issued and
authenticated and (b) FNBC is holding such
Global Security pursuant to the Medium Term
Note Certificate Agreement between FNBC and
DTC.
G. Unless such Agent purchased such Note as
principal, 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.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
I. FNBC will credit to the account of the
Company maintained at FNBC Bank, New York,
New York, in funds available for immediate
use in the amount transferred to FNBC in
accordance with Settlement Procedure "F".
Funds shall be wired to CoreStates Bank; ABA
No. 031000011, credit account of Consolidated
Rail Corporation, No. 0131-2129, RE: Conrail
Medium Term Note Program.
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<PAGE> 38
J. Unless such Agent purchased such Note as
principal, 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.
Monthly, FNBC will send to the Company a
statement setting forth the principal amount
of Notes Outstanding as of that date under
the Indenture and setting forth a brief
description of any sales of which the Company
has advised FNBC but which have not yet been
settled.
For sales by the Company of Book-Entry Notes
to or through any Agent (except pursuant to a
Terms Agreement) for settlement on the first
Business Day after the sale date, 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:
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
</TABLE>
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
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<PAGE> 39
practicable but no later than 11:00 A.M.,
12:00 Noon and 2:00 P.M., respectively, 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 "H" 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, FNBC, after
receiving notice from the Company or the
Agent that solicited the purchase of such
Note, 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 If FNBC fails to enter an SFDS deliver order with
Settle: respect to a Book-Entry Note pursuant to Settlement
Procedure "F", FNBC may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note
to FNBC's participant account, provided that FNBC'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, FNBC will mark such Global Security
"canceled," make appropriate entries in FNBC's
records and send such
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<PAGE> 40
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, FNBC 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
remaining 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 that solicited
the purchase of such Note may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures "F" and "G", respectively. Thereafter,
FNBC will deliver the withdrawal message and take the
related actions described in the Preceding paragraph.
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, FNBC will
provide, in accordance with Settlement Procedures "D"
and "F", for the authentication and issuance of a
Global Security
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<PAGE> 41
representing the Book-Entry Notes to be represented
by such Global Security and will make appropriate
entries in its records.
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<PAGE> 42
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
FNBC will serve as registrar in connection with the Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by FNBC. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or in
lieu of a destroyed, lost or stolen Certificated
Note, the original issuance date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Registration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and A Certificated Note may be presented for transfer or
Exchanges: exchange at the corporate trust office of FNBC in New
York City. Certificated Notes will be exchangeable
for other Certificated Notes having identical terms
but different denominations without service charge.
Certificated Notes will not be exchangeable for
Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date more
than nine months from the settlement date for such
Note.
Currency: Certificated Notes will be issued in U.S. dollars.
Denominations: The denomination of any Certificated Note will be a
minimum of U.S. $1000 or any amount in excess thereof
that is an integral multiple of U.S. $1,000.
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<PAGE> 43
Interest: General. Interest on each Certificated Note will
accrue from the Original Issue Date of such Note for
the first interest period and from the most recent
date to which interest has been paid for all
subsequent interest periods. Each payment of interest
on a Certificated Note will include interest accrued
to but excluding the Interest Payment Date; provided
that in the case of Floating Rate Notes which reset
daily or weekly, interest payments will include the
Record Date immediately preceding the Interest
Payment Date, except that at maturity or earlier
redemption, the interest payable will include
interest accrued to, but excluding the Maturity Date
or the date of redemption, as the case may be.
Fixed Rate Certificated Notes. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Certificated Notes
other than Amortizing Notes will be made semiannually
on March 1 and September 1 of each year and at
maturity and Certificated Amortizing Notes will pay
principal and interest semiannually each March 1 and
September 1, or quarterly each March 1, June 1,
September 1, and December 1, and at
maturity;provided, however, that in the case of
Certificated Fixed Rate Notes issued between a Record
Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Floating Rate Certificated Notes. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semiannually or annually.
Interest will be payable, unless otherwise specified
in the applicable Pricing Supplement, in the case of
Floating Rate Certificated Notes with a daily, weekly
or monthly Interest Reset Date, on the third
Wednesday of each month or on the third Wednesday of
March, June,
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<PAGE> 44
September and December, as specified pursuant to
Settlement Procedure "A" below; in the case of Notes
with a quarterly interest Payment Reset Date, on the
third Wednesday of March, June, September and
December of each year; in the case of Notes with a
semi-annual Interest Reset Date, on the third
Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and in the case of
Notes with an annual Interest Reset Date, on the
third Wednesday of the month specified pursuant to
Settlement Procedure "A" below; provided, however,
that if an Interest Payment Date for Floating Rate
Certificated Notes would otherwise be a day that is
not a Business Day with respect to such Floating Rate
Certificated Notes, such Interest Payment Date will
be the next succeeding Business Day with respect to
such Floating Rate Certificated Notes, except in the
case of a LIBOR Note if such Business Day is in the
next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day;
and provided furtherthat, in the case of a Floating
Rate Certificated Note issued between a Record Date
and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Calculation of Fixed Rate Certificated Notes. Interest on Fixed
Interest: Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis of a
year of twelve thirty-day months.
Floating Rate Certificated Notes. Interest rates on
Floating Rate Certificated Notes will be determined
as set forth in the form of Notes. Interest on
Floating Rate Certificated Notes will be calculated
on the basis of actual days elapsed and a year of 360
days, except that in the case of Treasury Rate Notes,
interest will be calculated on the basis of the
actual number of days in the year.
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<PAGE> 45
Payments of FNBC will pay the principal amount of each
Principal and Certificated Note at maturity or upon redemption upon
Interest: presentation and surrender of such Note to FNBC.
Such payment, together with the payment of
interest due at maturity or upon
redemption of such Note, will be made in funds
available for immediate use by FNBC and in turn by
the holder of such Note. Certificated Notes presented
to FNBC at maturity or upon redemption for payment
will be canceled by FNBC and delivered to the
Company with a certificate of cancellation. All
interest payments on a Certificated Note (other than
interest due at maturity or upon redemption) will be
made by check drawn on FNBC (or another person
appointed by FNBC) and mailed by FNBC to the person
entitled thereto as provided in such Note and the
Indenture; provided, however, that the holder of
$10,000,000 or more of Notes having the same Interest
Payment Date will be entitled to receive payment by
wire transfer of immediately available funds.
Following each Record Date, FNBC will furnish the
Company with a list of interest payments to be made
on the following Interest Payment Date for each
Certificated Note and in total for all Certificated
Notes. Interest at maturity or upon redemption will
be payable to the person to whom the payment of
principal is payable. FNBC will provide monthly to
the Company lists of principal and interest, to the
extent ascertainable, to be paid on Certificated
Notes maturing or to be redeemed in the next month.
FNBC will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If any Interest Payment Date or the Maturity Date or
redemption date of a Fixed Rate Certificated Note is
not a Business Day, the payment due on such day shall
be made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date, Maturity
Date or
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<PAGE> 46
redemption date, as the case may be. If any Interest
Payment Date or the Maturity Date or redemption date
for any Certificated Floating Rate Note would fall on
a day that is not a Business Day with respect to such
Note, such Interest Payment Date, Maturity Date or
redemption date will be the following day that is a
Business Day with respect to such Note, except that,
in the case of a Certificated Telerate Note, if such
Business Day is in the next succeeding calendar
month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day with
respect to such Certificated Telerate Note.
Preparing of If any order to purchase a Certificated Note is
Pricing accepted by or on behalf of the Company, the Company
Supplement: will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note and
will arrange to file such Pricing Supplement with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, and will
deliver the number of copies of such Pricing
Supplement to each Agent as such Agent shall request
as soon as practicable, but in no event later than
3:00 PM on Business Day following the trade date at
following locations: Morgan Stanley Incorporated
1221 Avenue of the Americas, 4th Floor,
NY, NY 10020, 212-296-5830, (FAX) 212-764-7490;
Merrill Lynch & Co. - Tritech Services, 4 Corporate
Place, Corporate Park 287, Piscataway, NJ 08854,
908-878-6525/652 /6527, (FAX) 908-878-6530, with a
copy to Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial
Center, North Tower, 10th Floor, NY NY 10281-1310,
Attn: MTN Product Department, 212-449- 7476
(FAX)212-449-2234; and Salomon Brothers Inc,
8800 Hidden River Parkway, Tampa, FL 33637,
Attn: Enrico Castro, 813-558-7165,
(FAX) 813-558-4123. Each Agent will cause such
Pricing Supplement to be delivered to the purchaser
of a Note the purchase of
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<PAGE> 47
which was solicited by such Agent.
In each instance that a Pricing Supplement is
prepared, such Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the Prospectuses to
which they are attached (other than those retained
for files), will be destroyed.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to an Agent and such Agent's delivery
of such Note against receipt of immediately available
funds shall constitute "settlement" with respect to
such Note. All orders accepted by the Company will be
settled on or before the fifth Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on
another date.
Settlement Settlement Procedures with regard to each
Procedures: Certificated Note sold by the Company to or through
any Agent (except pursuant to a Terms Agreement)
shall be as follows:
A. Such Agent will advise the Company by
telephone that such Note is a Certificated
Note and of the following settlement
information:
1. Name in which such Note is to be
registered ("Registered Owner" ) .
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of
the Registered Owner (if available).
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<PAGE> 48
4. Principal amount of Notes to be
purchased.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the interest rate and
whether such Note is an Amortizing Note or,
in the case of a Floating Rate Certificated
Note, the Initial Interest Rate (if known at
such time), Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Interest Period,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest Rate
(if any), the Alternate Rate Event Spread (if
any) and the applicability of the Modified
Following Banking Day Convention.
7. Interest Payment Dates.
8. Redemption provisions, if any.
9. Settlement date.
10. Issue date.
11. Issue price.
12. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
13. Whether the Note is an OID Note, and
if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual period
OID and the applicability of
Modified Payment upon Acceleration.
14. Any other applicable Terms.
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<PAGE> 49
B. The Company will advise FNBC by telephone or
electronic transmission (confirmed in writing
at any time on the sale date) of the
information set forth in Settlement Procedure
"A" above.
C. The Company will have delivered to FNBC a
pre-printed four-ply packet for such Note,
which packet will contain the following
documents in forms that have been approved by
the Company, such Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For FNBC.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. FNBC will complete such Note and authenticate
such Note and deliver it (with the
confirmation) and Stubs One and Two to such
Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise
marking Stub One and returning it to FNBC.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent for
payment to the account of the Company at FNBC
Bank, New York, New York, in funds available
for immediate use, of an amount equal to the
price of such Note less such Agent's
commission, if any. In the event that the
instructions given by such Agent for payment
to the account of such Company are revoked,
the Company will as promptly as possible wire
transfer to the account of the Agent an
amount of immediately available funds equal
to the amount of
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<PAGE> 50
such payment made.
Certificated Notes shall be delivered to the
following locations: Morgan Stanley & Co.
Incorporated - The Bank of New York, Dealer
Clearance Department, One Wall Street, 3rd
Floor, Window 3B, NY NY 10005, Attn: For
the Account of Morgan Stanley & Co.
Incorporated; Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
75 Barclay Building, Ground Floor, Window C,
NY NY, 10080, Attn: Kevin Brennan; and Salomon
Brothers Inc - The Bank of New York, Dealer
Clearance Department, One Wall Street, 3rd
Floor, Window 3B, NY NY 10005, Attn: For
the Account of Salomon Brothers Inc.
E. Unless such Agent purchased such Note as
principal, such Agent will deliver such Note
(with confirmation) to the customer against
payment in immediately payable funds. Such
Agent will obtain the acknowledgment of
receipt of such Note by retaining Stub Two.
F. FNBC will send Stub Three to the Company by
first-class mail. Periodically, FNBC will
also send to the Company a statement setting
forth the principal amount of the Notes
Outstanding as of that date under the
Indenture and setting forth a brief
description of any sales of which the Company
has advised FNBC but which have not yet been
settled.
Settlement For sales by the Company of Certificated Notes to or
Procedures through any Agent (except pursuant to a Terms
Timetable: Agreement), Settlement Procedures "A" through "F" set
forth above shall be completed on or before the
respective times (New York City time) set forth
below:
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<PAGE> 51
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 3:00 P.M. on settlement date
</TABLE>
Failure to If a purchaser fails to accept delivery of and make
Settle: payment for any Certificated Note, the Agent that
solicited the purchase of such Note will notify the
Company and FNBC by telephone and return such Note to
FNBC. Upon receipt of such notice, the Company will
immediately wire transfer to the account of such
Agent an amount equal to the amount previously
credited thereto in respect of such Note. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than
a default by such Agent in the performance of its
obligations hereunder and under the Distribution
Agreement with the Company, then the Company will
reimburse such Agent or FNBC, as appropriate, on an
equitable basis for its loss of the use of the funds
during the period when they were credited to the
account of the Company. Immediately upon receipt of
the Certificated Note in respect of which such
failure occurred, FNBC will mark such Note
"canceled," make appropriate entries in FNBC's
records and send such Note to the Company.
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<PAGE> 1
[FORM OF FACE OF SECURITY]
FLOATING RATE NOTE
REGISTERED REGISTERED
No. FLR U.S. $
CUSIP: *
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., 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.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO MATURITY"
AND "INITIAL ACCRUAL PERIOD OID" SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR
THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID")
RULES.
CONSOLIDATED RAIL CORPORATION
MEDIUM-TERM NOTE
(Floating Rate)
ISSUE PRICE: ORIGINAL ISSUE DATE: MATURITY DATE:
BASE RATE: INTEREST ACCRUAL DATE: INTEREST PERIOD:
APPLICABILITY INITIAL INTEREST RATE: INTEREST PAYMENT
OF MODIFIED DATES:
FOLLOWING
BANKING DAY
CONVENTION: INITIAL INTEREST RESET INTEREST RESET
DATE: PERIOD:
INDEX MATURITY MAXIMUM INTEREST RATE: INTEREST RESET DATES:
SPREAD (PLUS OR MINIMUM INTEREST RATE: CALCULATION AGENT:
MINUS):
* Applies only if this Note is a Registered Global Security.
-1-
<PAGE> 2
ALTERNATE RATE INITIAL REDEMPTION DATE:
EVENT SPREAD: AT ISSUER'S OPTION:
AT HOLDER'S OPTION: TOTAL AMOUNT OF OID:
SPREAD MULTIPLIER: INITIAL REDEMPTION ORIGINAL YIELD TO
PERCENTAGE (if at MATURITY:
Issuer's Option):
ANNUAL REDEMPTION INITIAL ACCRUAL
PERCENTAGE REDUCTION: PERIOD OID:
Consolidated Rail Corporation, a Pennsylvania corporation (the
"Issuer"), for value received, hereby promises to pay to , or
registered assignees, the principal sum of------------- on the Maturity Date
specified above (except to the extent redeemed prior to the Maturity Date) and
to pay interest thereon, from the Original Issue Date specified above at a rate
per annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above, and thereafter at a rate per annum
determined in accordance with the provisions specified on the reverse hereof
until the principal hereof is paid or duly made available for payment. The
Issuer will pay interest in arrears monthly, quarterly, semiannually, annually
or otherwise periodically as specified above as the Interest Payment Period on
each Interest Payment Date (as specified above), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date (or any redemption date); provided, however, that if
the Original Issue Date occurs between a Record Date, as defined below, and the
next succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Original Issue Date to the
registered holder of this Note on the Record Date with respect to such second
Interest Payment Date; and provided, further, that if an Interest Payment Date
or the Maturity Date or redemption date would fall on a day that is not a
Business Day, as defined on the reverse hereof, such Interest Payment Date,
Maturity Date or redemption date shall be the following day that is a Business
Day, except that if the Modified Following Banking Day Convention is specified
above as applicable and such next Business Day falls in the next calendar
month, the Interest Payment Date, Maturity Date or redemption date shall be the
immediately preceding day that is a Business Day.
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Original Issue Date or,
if the Interest Reset Period specified above is daily or weekly, from, and
including, the date hereof (if no interest has been paid on this Note) or from,
and excluding, the last date in respect of which interest has been paid or duly
provided for, as the case may be. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, 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
date 15 calendar days prior to an Interest Payment Date (whether or not a
Business Day) (the "Record Date"); provided, however, that interest payable on
the Maturity Date (or any redemption date) will be payable to the person to
whom the principal hereof shall be payable.
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<PAGE> 3
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any redemption date) will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Trustee, as defined on the reverse hereof, maintained for that purpose in the
Borough of Manhattan, The City of New York, or at such other paying agency as
the Issuer may determine. Payment of the principal of and premium, if any, and
interest on this Note will be made in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that payments of interest, other
than interest due at maturity or any date of redemption, will be made by United
States dollar check mailed to the address of the person entitled thereto as
such address shall appear in the Note register. A holder of U.S. $10,000,000
or more in aggregate principal amount of Notes having the same Interest Payment
Date will be entitled to receive payments of interest, other than interest due
at maturity or any date of redemption, by wire transfer of immediately
available funds if appropriate wire transfer instructions in writing have been
received by the Trustee not less than 15 calendar days prior to the applicable
Interest Payment Date.
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 by manual signature, this Note shall not be entitled to any benefit
under the Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: CONSOLIDATED RAIL CORPORATION
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes By:---------------------------------
referred to in the within- Title:--------------------------------
mentioned Indenture
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:
----------------------------
Authorized Officer
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<PAGE> 4
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes
having maturities more than nine months from the date of issue (the "Notes") of
the Issuer. The Notes are issuable under an Indenture, dated as of January
15, 1994 (herein called the "Indenture"), between the Issuer and The First
National Bank of Chicago, 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 of the Issuer,
the Trustee and holders of the Notes and the terms upon which the Notes are,
and are to be, authenticated and delivered. The terms of individual Notes may
vary with respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Indenture. To the extent
not inconsistent herewith, the terms of the Indenture are hereby incorporated
by reference herein.
Unless otherwise indicated on the face of this Note, this Note may not
be redeemed prior to the Maturity Date. If so indicated on the face of this
Note, this Note may be redeemed at the option of the Issuer, at the option of
the holder or both on or after a specified date or dates prior to the Maturity
Date on the terms set forth on the face hereof, together with interest accrued
and unpaid thereon to the date of redemption Notice of redemption shall be
mailed to the registered holders of the Notes designated for redemption at
their addresses as the same shall appear on the Note register not less than 30
nor more than 60 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 amount of the unredeemed portion
hereof shall be issued in the name of the holder hereof upon the cancellation
hereof.
This Note will bear interest at the rate determined in accordance with
the applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus
or minus the Spread, if any, and/or (ii) multiplied by the Spread Multiplier,
if any, specified on the face hereof. Commencing with the Initial Interest
Reset Date specified on the face hereof, the rate at which interest on this
Note is payable shall be reset as of each Interest Reset Date (as used herein,
the term "Interest Reset Date" shall include the Initial Interest Reset Date).
The Interest Reset Dates will be the Interest Reset Dates specified on the face
hereof; provided, however, that (i) the interest rate in effect for the period
from the Original Issue Date to the Initial Interest Reset Date specified on
the face hereof will be the Initial Interest Rate, (ii) the interest rate in
effect hereon for the 10 days immediately prior to the Maturity Date hereof
(or, with respect to any principal amount to be redeemed, any redemption date)
shall be that in effect on the 10th day preceding the Maturity Date hereof or
such date of redemption, as the case may be and (iii) if any Note is issued
between a Record Date and the related Interest Payment Date, and such Note has
daily or weekly Interest Reset Dates, then notwithstanding the fact that an
Interest Reset Date may occur prior to such Interest Payment Date, the Initial
Interest Rate set forth on the face hereof shall remain in effect through the
first Interest Reset Date occurring on or subsequent to such Interest Payment
Date. If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that in
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<PAGE> 5
in the case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the next preceding Business
Day. As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law or regulation to close in The City of New
York and, with respect to Notes bearing interest calculated by reference to
LIBOR, in the City of London.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate and Prime Rate will be the second Business Day
next preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated by
reference to LIBOR shall be the second London Banking Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the Treasury
Rate shall be the day of the week in which such Interest Reset Date falls on
which Treasury bills normally would be auctioned; provided, however, that if as
a result of a legal holiday an auction is held on the Friday of the week
preceding such Interest Reset Date, the related Interest Determination Date
shall be such preceding Friday; and provided, further, that if an auction shall
fall on any Interest Reset Date, then the Interest Reset Date shall instead be
the first Business Day following the date of such auction.
The "Calculation Date" pertaining to any Interest Determination Date
will be the earlier of the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business Day,
or, the Business Day immediately preceeding the applicable Interest Payment
Date or the Maturity Date, as the case may be.
Determination of CD Rate. If the Base Rate specified on the face
hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity specified
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 of the Federal Reserve
System ("H 15(519)"), under the heading "CDs (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the CD Rate will be the rate on such
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity specified 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" ("Composite Quotations") under the heading
"Certificates of Deposit." If neither of such rates is published by 3:00 P.M.,
New York City time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to on
the face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such Interest Determination
Date, for certificates of deposit in the denomination of U.S. $5,000,000 with a
remaining maturity closest to the Index Maturity specified on the face hereof
of three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York (which may include the Agents) selected by the
Calculation
-5-
<PAGE> 6
Agent for negotiable certificates of deposit of major United States money
center banks of the highest credit standing in the market for negotiable
certificates of deposit; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate in effect for the applicable period will be the same as
the CD Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate specified
on the face hereof is the Commercial Paper Rate, the Commercial Paper Rate with
respect to this Note shall be determined on each Interest Determination Date
and shall be the Money Market Yield (as defined herein) of the rate on such
date for commercial paper having the Index Maturity specified on the face
hereof, as such rate shall be published in H.15(519) under the heading
"Commercial Paper," or if not so published prior to 9:00 A.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
the Commercial Paper Rate shall be the Money Market Yield of the rate on such
Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper " If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time on such Interest Determination Date
of three leading dealers in commercial paper in The City of New York (which may
include the Agents) selected by the Calculation Agent for commercial paper of
the Index Maturity specified on the face hereof, placed for an industrial
issuer whose bond rating is "AA," or the equivalent, from a nationally
recognized 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 in effect for the applicable period will be
the same as the Commercial Paper Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
<TABLE>
<S> <C>
D x 360 x 100
----------------
Money Market Yield 360 - (D x M)
</TABLE>
where "D" refers to the applicable 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 Federal Funds Rate. If the Base Rate specified on the
face hereof is the Federal Funds Rate, the Federal Funds Rate with respect to
this Note shall be determined on each Interest Determination Date and shall be
the rate on such date for federal funds as published by the Board of Governors
in the Federal Reserve System in H.15(519) under the heading "Federal Funds
(Effective)," or, if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the Federal
Funds Rate will be the rate on
-6-
<PAGE> 7
such Interest Determination Date as published by the Federal Reserve Bank of
New York in Composite Quotations under the heading "Federal Funds/Effective
Rate." If neither of such rates is published by 3:00 P.M., New York City time,
on such Calculation Date, the Federal Funds Rate for such interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight U.S. dollar
federal funds as of 9:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in federal funds
transactions in The City of New York (which may include the Agents) 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 in effect for the applicable period will be
the same as the Federal Funds Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) With respect to a LIBOR Interest Determination Date,
LIBOR will be, as specified in the applicable Pricing Supplement,
either: (a) the arithmetic mean of the offered rates for deposits in
U.S. dollars having the Index Maturity designated in the applicable
Pricing Supplement, commencing on the second London Banking Day
immediately following the LIBOR Interest Determination Date, that
appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time,
on that LIBOR Interest Determination Date, if at least two such
offered rates appear on the Reuters Screen LIBO Page ("LIBOR
Reuters"), or (b) the rate for deposits in U.S. dollars having the
Index Maturity designated in the applicable Pricing Supplement,
commencing on the second London Banking Day immediately following that
LIBOR Interest Determination Date, that appears on the Telerate Page
3750 as of 11:00 a.m., London time, on that LIBOR Interest
Determination Date ("LIBOR Telerate"). "Reuters Screen LIBO" Page
means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBO page
on that service for the purpose of displaying London interbank offered
rates of major banks). "Telerate Page 3750" means the display
designated as page "3750" on the Telerate Service (or such other page
as may replace the 3750 page on the service or such other service or
services as may be nominated by the British Bankers' Association for
the purpose of displaying London interbank offered rates for U.S.
dollar deposits). If neither LIBOR Reuters nor LIBOR Telerate is
specified in the applicable Pricing Supplement, LIBOR will be
determined as if LIBOR Telerate had been specified. If fewer than two
offered rates appear on the Reuters Screen LIBO Page, or if no rate
appears on the Telerate Page 3750, as applicable, LIBOR in respect of
that LIBOR Interest Determination Date will be determined as if the
parties specified the rate described in (ii) below.
-7-
<PAGE> 8
(ii) With respect to a LIBOR Interest Determination Date
on which fewer than two offered rates appear on the Reuters Screen
LIBO Page, as specified in (i)(a) above, or on which no rate appears
on Telerate Page 3750, as specified in (i)(b) above, as applicable,
LIBOR will be determined on the basis of the rates at which deposits
in U.S. dollars having the Index Maturity designated in the applicable
Pricing Supplement are offered at approximately 11:00 a.m. London
time, on that LIBOR Interest Determination Date by four major banks in
the London interbank market selected by the Calculation Agent
("Reference Banks") to prime banks in the London interbank market
commencing on the second London Banking Day immediately following that
LIBOR Interest Determination Date and in a principal amount equal to
an amount of not less than $1,000,000 that is representative for a
single transaction in such market at such time. The Calculation Agent
will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR in respect of that LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR in respect of that LIBOR
Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 a.m., New York City time, on that LIBOR
Interest Determination Date by three major banks in the City of New
York selected by the Calculation Agent for loans in U.S. dollars to
leading European banks having the Index Maturity designated in the
applicable Pricing Supplement commencing on the second London Banking
Day immediately following that LIBOR Interest Determination Date and
in a principal amount equal to an amount of not less than $1,000,000
that is representative for a single transaction in such market at such
time; provided, however, that if the banks selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence,
LIBOR with respect to such LIBOR Interest Determination Date will be
the rate of LIBOR in effect on such date.
Determination of Prime Rate. If the Base Rate specified on the face hereof is
the Prime Rate, the Prime Rate with respect to this Note shall be determined on
each Interest Determination Date and shall be the rate set forth in H.15(519)
for such date opposite the caption "Bank Prime Loan." If such rate is not yet
published by 9:00 A.M., New York City time, on the Calculation Date, the Prime
Rate for such Interest Determination Date will be the arithmetic mean of the
rates of interest publicly announced by each bank named on the Reuters Screen
NYMF Page as such bank's prime rate or base lending rate as in effect for such
Interest Determination Date as quoted on the Reuters Screen NYMF Page on such
Interest Determination Date, or, if fewer than four such rates appear on the
Reuters Screen NYMF Page for such Interest Determination Date, the rate 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
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 from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be determined
as the arithmetic mean on the basis of the prime rates 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, in
each case having total equity capital of at least U.S.
-8-
<PAGE> 9
$500 million and being subject to supervision or examination by federal or
state authority, selected by the Calculation Agent to quote such rate or rates.
If in any month or two consecutive months the Prime Rate is not
published in H.15(519) and the banks or trust companies selected as aforesaid
are not quoting as mentioned in the preceding paragraph, the "Prime Rate" for
such Interest Reset Period will be the same as the Prime Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If this failure continues over three or more consecutive months, the
Prime Rate for each succeeding Interest Determination Date until the Maturity
Date or redemption of this Note or, if earlier, until this failure ceases,
shall be LIBOR determined as if the Base Rate specified on the face hereof were
LIBOR, and the Spread, if any, shall be the number of basis points specified on
the face hereof as the "Alternate Rate Event Spread."
Determination of Treasury Rate. If the Base Rate specified on the
face hereof is the Treasury Rate, the Treasury Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the rate
for the auction held on such date of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof, as
published by the Board of Governors of the Federal Reserve System in H.15(519)
under the heading "U.S. Government Securities-- Treasury Bills--auction average
(investment)," or if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the auction
average rate on such Interest Determination Date (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 the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date or if no such auction is held on such Interest
Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Interest
Determination Date, of three leading primary United States government
securities dealers (which may include the Agents) selected by the Calculation
Agent for the issue of Treasury Bills with a remaining maturity closest to the
Index Maturity specified 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 for such Interest Reset Date will
be the same as the Treasury Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of Interest Rate for Inverse Floating Rate Notes. In
the case of a Note denominated an Inverse Floating Rate Note on the face
hereof, the Base Rate shall be a fixed rate as specified on the face hereof
from the date of issuance up to the Interest Reset Date and, for each period
commending on the Interest Reset Date, a fixed rate of interest specified on
the face hereof minus the interest determined by reference to the Base Rate as
adjusted by (i) the Spread, if any, and/or (ii) multiplied by the Spread
Multiplier, if any, as specified on the face hereof;
-9-
<PAGE> 10
provided, however, that (x) the interest rate on such Note shall not be less
than zero, and (y) the interest rate in effect for the ten (10) days
immediately prior to the Maturity Date of such Note shall be that interest rate
in effect on the tenth day preceding such Maturity Date.
Determination of Interest Rate for Fixed Rate/Floating Rate Note. In
the case of a Note denominated a Fixed Rate/Floating Rate Note on the face
hereof, the Base Rate shall be as specified on the face hereof and determined
in accordance with the provisions hereof for determining such Floating Rate
from the date of issuance up to the Interest Reset Date and , for each period
commencing on the Interest Reset Date, the interest rate shall be the Fixed
rate specified on the face hereof.
Determination of Interest Rate for Floating Rate/Fixed Rate Note. In
the case of a Note denominated a Floating Rate/Fixed Rate Note on the face
hereof, the Base Rate shall be the Fixed Rate as specified on the face hereof
from the date of issuance up to the Interest Reset Date, and for each period
commencing on the Interest Reset Date, the Floating Rate shall be as specified
on the face hereof, determined in accordance with the provisions hereof for
determining such Floating Rate.
Notwithstanding the foregoing, the interest rate hereon shall not be greater
than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate,
if any, specified on the face hereof. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or Maturity Date (or any redemption date),
as the case may be; provided, however, that if the Interest Reset Period with
respect to this Note is daily or weekly, interest payable on any Interest
Payment Date, other than interest payable on any date on which principal hereof
is payable, will include interest accrued through and including the Record Date
next preceding the applicable Interest Payment Date. Accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
interest is being paid. The interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the
Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate or
LIBOR, as specified on the face hereof, or by the actual number of days in the
year if the Base Rate is the Treasury Rate, as specified on the face hereof.
All percentages resulting from any calculation of the rate of interest or this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (.0000001), with five one-millionths of a percentage point
rounded upward, and all dollar amounts used in or resulting from such
calculation on this Note will be rounded to the nearest
-10-
<PAGE> 11
cent (with one-half cent rounded upward). The interest rate in effect on any
Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured
and unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, in
denominations of $1000 and any integral multiple of U.S. $1,000 in excess
thereof.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form approved by the Trustee
and duly executed by the registered holder hereof in person or by the holder's
attorney duly authorized in writing, and thereupon the Trustee shall issue in
the name of the transferee or transferees, in exchange herefor, a new Note or
Notes having identical terms and provisions for a like aggregate principal
amount in authorized denominations, subject to the terms and conditions set
forth herein; provided, however, that the Trustee will not be required to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part except the unredeemed portion of Notes being
redeemed in part, or to register the transfer of or exchange Notes to the
extent and during the period so provided in the Indenture with respect to the
redemption of Notes. Notes are exchangeable at said office for other Notes of
other authorized denominations of equal aggregate principal amount having
identical terms and provisions. All such exchanges and transfers of Notes will
be free of charge, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form approved by the Trustee and executed by the registered holder
in person or by the holder's attorney duly authorized in writing. The date of
registration of any Note delivered upon any exchange or transfer of Notes shall
be such that no gain or loss of interest results from such exchange or
transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated, or in lieu of the Note so destroyed or
lost or stolen, but, in the case of any destroyed or lost or stolen Note, only
upon receipt of evidence satisfactory to the Trustee and the Issuer that such
Note was destroyed or lost or stolen and, if required, upon receipt also of
indemnity satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery
-11-
<PAGE> 12
of a new Note shall be borne by the owner of the Note mutilated, defaced,
destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default (as defined in
such Indenture) due to the default in payment of principal of, premium, if any,
or interest on, any series of debt securities issued under the Indenture,
including the series of Medium-Term Notes of which this Note forms a part, or
due to the default in the performance or breach of any other covenant or
warranty of the Issuer applicable to the debt securities of such series but not
applicable to all outstanding debt securities issued under the Indenture shall
have occurred and be continuing, either the Trustee or the holders of not less
than 25% in aggregate principal amount of the debt securities of each
outstanding affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default due to
a default in the performance of any other of the covenants or agreements in the
Indenture applicable to all outstanding debt securities issued thereunder,
including this Note, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
all debt securities issued under the Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain conditions
such declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal (or premium, if any) or interest on
such debt securities) by the holders of a majority in principal amount of the
debt securities of all affected series then outstanding.
The Indenture permits the Issuer and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
debt securities of each series issued under the Indenture then outstanding and
affected, to execute supplemental indentures adding any provisions to or
changing in any manner the rights of the holders of each series so affected;
provided that the Issuer and the Trustee may not, without the consent of the
holder of each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption thereof, or change the currency of payment
thereof, or impair or affect the rights of any holder to institute suit for the
payment thereof; or (b) reduce the aforesaid percentage in principal amount of
debt securities the consent of the holders of which is required for any such
supplemental indenture.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be such
an agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
-12-
<PAGE> 13
With respect to moneys paid by the Issuer and held by the Trustee for
the payment of the principal of or interest or premium, if any, on any Notes
that remain unclaimed at the end of two years after such principal, interest or
premium shall have become due and payable (whether at maturity or upon call for
redemption or otherwise), (i) the Trustee shall notify the holders of such
Notes that such moneys shall be repaid to the Issuer and any person claiming
such moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee with respect to such moneys shall thereupon cease,
without, however, limiting in any way any obligation that the Issuer may have
to pay the principal of or interest or premium, if any, on this Note as the
same shall become due.
No provision of this Note or of the Indenture shall alter or impair
the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place,
and rate as herein prescribed unless otherwise agreed between the Issuer and
the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
-13-
<PAGE> 14
UNIF GIFT MIN ACT - ....................Custodian.....................
(Custodian) (Minor)
Under Uniform Gifts to Minors Act.....................................
(State)
Additional abbreviations may also be used though not in the above list.
-14-
<PAGE> 15
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 ZIP CODE,
- --------------------------------------------------------------
OF ASSIGNEE] the within Note and all rights thereunder, hereby irrevocably
- --------------------------------------------------------------
constituting and appointing such person attorney to transfer such note on the
books of the
- --------------------------------------------------------------
Issuer, with full power of substitution in the premises.
Dated:
--------------------
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
-15-
<PAGE> 1
[FORM OF FACE OF SECURITY]
FIXED RATE NOTE
REGISTERED REGISTERED
NO. FXR U.S. CUSIP:
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., 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.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "ORIGINAL YIELD TO MATURITY"
AND "INITIAL ACCRUAL PERIOD OID" SET FORTH BELOW HAVE BEEN COMPLETED SOLELY
FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
CONSOLIDATED RAIL CORPORATION
MEDIUM-TERM NOTE
(Fixed Rate)
<TABLE>
<S> <C>
ORIGINAL INTEREST RATE:
ISSUE DATE:
INTEREST INTEREST PAYMENT
ACCRUAL DATE: DATES:
ISSUE PRICE: MATURITY
DATE:
</TABLE>
*Applies only if this Note is a Registered Global Security.
-1-
<PAGE> 2
Consolidated Rail Corporation, a Pennsylvania corporation (the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or registered
assignees, the principal sum of -----------------Dollars ($------------), on
the Maturity Date specified above (except to the extent redeemed prior to the
Maturity Date) and to pay interest thereon at the Interest Rate per annum
specified above from the Original Issue Date specified above until the
principal hereof is paid or duly made available for payment except as provided
below), semiannually in arrears on the first day of -------and ------------in
each year commencing on the Interest Payment Date next succeeding the original
Issue Date specified above, and on the Maturity Date (or any redemption date);
provided, however, that if the Original Issue Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Original Issue Date to the registered holder of this Note on the Record Date
with respect to such second Interest Payment Date.
Interest on this Note will accrue from the most recent Interest Payment
Date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from the Original Issue Date, until the
principal hereof has been paid or duly made available for payment (except as
provided below). The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date, will, subject to certain exceptions
described herein, 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 date 15
calendar days prior to an Interest Payment Date (whether or not a Business Day)
(the "Record Date"); provided, however, that interest payable on the Maturity
Date (or any redemption date) will be payable to the person to whom the
principal hereof shall be payable. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or required by law or regulation
to close in The City of New York.
Payment of the principal of this Note, any premium and the interest due at
the Maturity Date (or any redemption date) will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Trustee as defined on the reverse hereof, maintained for that purpose in the
Borough of Manhattan, The City of New York. Payment of the principal of and
premium, if any, and interest on this Note will be made in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that
payments of interest, other than interest due at maturity or any date of
redemption, will be made by United States dollar check mailed to the address of
the person entitled thereto as such address shall appear in the Note register.
A holder of U.S. $10,000,000 or more in aggregate principal amount of Notes
having the same Interest Payment Date will be entitled to receive payments of
interest, other than interest due at maturity or any date of redemption, by
wire transfer of immediately available funds if appropriate wire transfer
instructions in writing have been received by the Trustee not less than 15
calendar days prior to the applicable Interest Pay Date.
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.
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<PAGE> 3
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture, as defined on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed
under its corporate seal.
DATED: Consolidated Rail Corporation
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION By:
----------------------------------
Title:
---------------------------------
This is one of the Notes referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-----------------------------
Authorized Officer
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<PAGE> 4
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes having
maturities more than nine months from the date of issue (the "Notes") of the
Issuer. The Notes are issuable under an Indenture, dated as of January 15,
1994 (herein called the "Indenture") between the Issuer and The First National
Bank of Chicago, 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 of the Issuer,
the Trustee and holders of the authenticated and delivered. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Indenture. To the extent not inconsistent herewith, the terms of the Indenture
are hereby incorporated by reference herein.
The Notes will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
paragraph, will not be redeemable prior to maturity.
Unless otherwise indicated on the face of this Note, this Note may not be
redeemed prior to the Maturity Date. If so indicated on the face of this Note,
this Note may be redeemed at the option of the Issuer, at the option of the
holder or both, on or after a specified date or dates prior to the Maturity
Date on the terms set forth on the face hereof together with interest accrued
and unpaid thereon to the date of redemption (except as provided below).
Notice of redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on the
Note register not less than 30 nor more than 60 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
amount of the unredeemed portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or earlier
redemption date), as the case may be. Interest payments for this Note will be
computed and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or any
redemption date) does not fall on a Business Day, payment of interest, premium,
if any, or principal otherwise payable on such date need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or on the Maturity Date (or
the redemption date) and no interest shall accrue for the period from and after
the Interest Payment Date or the Maturity Date (or the redemption date) to such
next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer, and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured
and unsubordinated indebtedness of the Issuer.
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<PAGE> 5
This Note, and any Note or Notes issued upon transfer or exchange hereof,
is issuable only in fully registered form, without coupons, in denominations of
U.S. $1000 and any integral multiple of U.S. $1,000 in excess thereof.
The Trustee has been appointed registrar for the Notes, and the Trustee
will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form approved by the Trustee
and duly executed by the registered holder hereof in person or by the holder's
attorney duly authorized in writing, and thereupon the Trustee will issue in
the name of the transferee or transferees, in exchange herefor, a new Note or
Notes having identical terms and provisions and having a like aggregate
principal amount in authorized denominations, subject to the terms and
conditions set forth herein; provided, however, that the Trustee will not be
required to register the transfer of or exchange any Note that has been called
for redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, or to register the transfer of or exchange Notes to the
extent and during the period so provided in the Indenture with respect to the
redemption of Notes. Notes are exchangeable at said office for other Notes of
other authorized denominations of equal aggregate principal amount having
identical terms and provisions. All such exchanges of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge in connection therewith. All Notes surrendered
for exchange shall be accompanied by a written instrument of transfer in form
approved by the Trustee and executed by the registered holder in person or by
the holder's attorney duly authorized in writing. The date of registration of
any Note delivered upon any exchange or transfer of Notes shall be such that no
gain or loss of interest results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated, defaced, or in lieu of the Note so
destroyed or lost or stolen, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that such Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default (as defined in the
Indenture) due to the default in payment of principal of, premium, if any, or
interest on any series of debt securities issued under the Indenture, including
the series of Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of the
Issuer applicable to the debt securities of such series but not applicable to
all outstanding debt securities issued under the Indenture shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the debt securities of each
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<PAGE> 6
outstanding affected series (voting as a single class) may then declare the
principal of all debt securities of all such series and interest accrued
thereon to be due and payable immediately and (b) if an Event of Default due to
a default in the performance of any other of the covenants or agreements in the
Indenture applicable to all outstanding debt securities issued thereunder,
including this Note, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
all debt securities issued under the Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain conditions
such declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal (or premium, if any) or interest on
such debt securities) by the holders of a majority in principal amount of the
debt securities of all affected series then outstanding.
If the face hereof indicates that this Note is subject to "Modified Payment
upon Acceleration," then if the principal hereof is declared to be due and
payable as described in the preceding paragraph, the amount of principal due
and payable with respect to this Note shall be limited to the aggregate
principal amount hereof multiplied by the Issue Price specified on the face
hereof (expressed as a percentage of the aggregate principal amount), plus the
dollar amount of original issue discount amortized from the Original Issue Date
to the date of declaration, which amortization shall be calculated using the
"interest method" (computed in accordance with generally accepted accounting
principles in effect on the date of declaration).
The Indenture permits the Issuer and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of the debt
securities of each series issued under the Indenture then outstanding and
affected, to execute supplemental indentures adding any provisions to or
changing in any manner the rights of the holders of each series so affected;
provided that the Issuer and the Trustee may not, without the consent of the
holder of each outstanding debt security affected thereby, (a) extend the final
maturity of any such debt security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any amount payable on redemption thereof, or change the currency of payment
thereof, or impair or affect the rights of any holder to institute suit for the
payment thereof; or (b) reduce the aforesaid percentage in principal amount of
debt securities the consent of the holders of which is required for any such
supplemental indenture.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency of said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest as such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be any
such agency, the Issuer shall keep the Trustee advised of the names and
locations of such agencies, if any are so designated.
With respect to monies paid by the Issuer and held by the Trustee for
payment of the principal of or interest or Premium, if any, on any Notes that
remain unclaimed at the end of two
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<PAGE> 7
years after such principal, interest on premium shall have become due and
payable (whether at maturity or upon call for redemption or otherwise), (i) the
Trustee shall notify the holders of such Notes that such monies shall be repaid
to the Issuer and any person claiming such monies shall thereafter look only to
the Issuer for payment thereof and (ii) such monies shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee with respect to such
monies shall thereupon cease, without, however, limiting in any way any
obligation that the Issuer may have to pay the principal of or interest or
premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, premium if any, and interest on this Note at the time, place, and
rate as herein prescribed, unless otherwise agreed between the Issuer and the
registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, for any claim based hereon or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
director, as such past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
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<PAGE> 8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GlFT MIN ACT-................Custodian............
(Cust) (Minor)
Under Uniform Gifts to Minors Act................... (State)
Additional abbreviations may also be used though not in the above list.
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<PAGE> 9
FOR VALUE RECEIVED, the undersigned hereby sell assign(s) and transfer(s) unto
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(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE
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OF ASSIGNEE] the within Note and all rights thereunder,
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hereby irrevocably constituting and appointing such person attorney
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to transfer such note on the books of the Issuer, with full power of
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substitution in the premises.
Dated:
----------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
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